tag:theconversation.com,2011:/uk/topics/watergate-14287/articlesWatergate – The Conversation2024-03-20T12:22:46Ztag:theconversation.com,2011:article/2244842024-03-20T12:22:46Z2024-03-20T12:22:46ZNixon declared Americans deserved to know ‘whether their president is a crook’ – Trump says the opposite<figure><img src="https://images.theconversation.com/files/578092/original/file-20240226-18-9gxbhg.jpg?ixlib=rb-1.1.0&rect=6%2C34%2C1518%2C839&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Richard Nixon and Donald Trump may seem similar, but they have key differences.</span> <span class="attribution"><span class="source">Official White House portraits</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>One of the four criminal trials of Donald Trump was slated to start in the next few days, but has been <a href="https://www.npr.org/2024/03/15/1238915986/trump-trial-new-york-delay-judge-stormy-daniels">delayed on procedural grounds</a>. There was a time when it appeared <a href="https://www.nytimes.com/2023/08/18/nyregion/trump-indictments-trial-2024-election.html">possible all of his trials could happen</a> before the November election. Now <a href="https://www.vox.com/politics/24055503/trump-trials-fani-willis-jack-smith-alvin-bragg">it is unclear whether even one</a> will begin in time. As a result, on Election Day, the voting public may not know a key fact about candidate Trump: whether a jury has found him guilty of one or more crimes.</p>
<p>Like Trump, <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/frenzy/nixon.htm">scandal followed Richard Nixon</a> <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/101072-1.htm">throughout his political career</a>. And, like Trump, Nixon always managed to claw his way back into the political forefront.</p>
<p><a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/080974-3.htm">Until he didn’t</a>.</p>
<p>As a <a href="https://scholar.google.com/citations?user=ow6DhIQAAAAJ&hl=en&oi=ao">scholar of American politics and public opinion</a>, I believe the <a href="https://www.bu.edu/articles/2020/trump-and-nixon-separated-at-birth/">parallels between Trump and Nixon</a> are clear. </p>
<p>Yet there is a telling difference between the two men. Nixon acknowledged the fundamental importance of accountability in a democracy. He went so far as to <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/111873-1.htm">famously declare</a> – during the height of the Watergate scandal – that “people have got to know whether or not their president is a crook.”</p>
<p>Trump, on the other hand, <a href="https://www.reuters.com/legal/trump-not-immune-election-subversion-charges-us-appeals-court-rules-2024-02-06/">outright rejects the assertion</a> that the American people should be able to find out what the justice system says about whether a prospective president is a crook.</p>
<p>In fact, he has gone so far as to assert that the “<a href="https://www.cnn.com/2024/01/18/politics/trump-presidential-immunity/index.html">president of the United States must have full immunity</a>, without which it would be impossible for him/her to properly function.”</p>
<p>Nixon made a similar statement in 1977, telling British journalist David Frost in 1977 that “<a href="https://teachingamericanhistory.org/document/transcript-of-david-frosts-interview-with-richard-nixon/">when the president does it … that means that it is not illegal</a>.” But Nixon hastened to add a crucial caveat that he was talking about war powers and national security, and specifically emphasized that he did not “mean to suggest the president is above the law.” </p>
<p>Afterward, Nixon responded to the backlash from the interview, writing a <a href="https://www.washingtonpost.com/archive/politics/1977/06/05/president-isnt-above-the-law-nixon-insists/71923838-492f-49d7-921f-0add6743501e/">long-winded clarification</a> that reiterated that the president is not above the law. </p>
<h2>Similar, but quite different</h2>
<p>Superficially, Nixon and Trump’s brands of politics share a lot of similarities. </p>
<p>Both men positioned themselves against allegedly crooked liberal elites and used the fact that they were being investigated as evidence that the people in power were trying to silence them and people like them. </p>
<p>As far back as 1952, Nixon was <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/frenzy/nixon.htm">accused of keeping a secret stash of donor funds</a> when he was a U.S. senator and a candidate for vice president. His fate as Dwight D. Eisenhower’s running mate in that year’s presidential election looked increasingly uncertain.</p>
<p>His instinct was to go public. On live TV, in what came to be known as the “<a href="https://www.pbs.org/wgbh/americanexperience/features/eisenhower-checkers/">Checkers speech</a>,” Nixon took his case directly to the American people. He positioned himself – an ordinary American with two mortgages, a bank loan and a loan from his parents – against the political elite. That elite, Nixon said, believed only rich men should be in politics, and <a href="https://theconversation.com/politicians-have-long-used-the-forgotten-man-to-win-elections-103570">Nixon was just a regular guy</a>.</p>
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<figcaption><span class="caption">Excerpts from Nixon’s ‘Checkers’ speech saying he had not profited personally from public service. The speech is nicknamed for the dog that was the one gift from supporters he planned to keep.</span></figcaption>
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<p>More than two decades later, Nixon, again facing disgrace, took his case to the public. The Watergate scandal, in which <a href="https://www.washingtonpost.com/wp-dyn/content/article/2002/05/31/AR2005111001227.html">Republican operatives sought to secretly listen in on Democratic Party business</a>, broke in the summer of 1972. Even before that year’s election, <a href="https://www.washingtonpost.com/politics/fbi-finds-nixon-aides-sabotaged-democrats/2012/06/06/gJQAoHIJJV_story.html">Nixon’s White House aides</a> and <a href="https://www.washingtonpost.com/politics/bug-suspect-got-campaign-funds/2012/06/06/gJQAyTjKJV_story.html">his campaign</a> were linked to the effort. Nixon went on to <a href="https://www.270towin.com/1972_Election/">win every state but Massachusetts</a> in the Electoral College.</p>
<p>His popularity <a href="https://www.presidency.ucsb.edu/statistics/data/richard-m-nixon-public-approval">peaked at 67%</a> in late January 1973 following the inauguration for his second term. However, as the Watergate scandal unfolded, <a href="https://www.washingtonpost.com/politics/3-top-nixon-aides-kleindienst-out-president-accepts-full-responsibility-richardson-will-conduct-new-probe/2012/06/04/gJQAx7oFJV_story.html">Nixon’s personal involvement</a> in the spying and attempts to cover it up <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/060373-1.htm">became increasingly clear</a> to the public. <a href="https://www.presidency.ucsb.edu/statistics/data/richard-m-nixon-public-approval">His popularity plummeted</a>.</p>
<p>One year after a landslide Electoral College victory, only <a href="https://www.presidency.ucsb.edu/statistics/data/richard-m-nixon-public-approval">27% of Americans</a> approved of the job Nixon was doing as president. In that context, Nixon made a <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/111873-1.htm">public plea of innocence and forthrightness</a>, declaring that the “people have got to know whether or not their president is a crook.” And he immediately followed that statement with a lie: “Well, I’m not a crook.”</p>
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<figcaption><span class="caption">Richard Nixon acknowledges the importance of accountability in a democracy.</span></figcaption>
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<h2>A contrast in support, and tactics</h2>
<p>Nixon’s instinct to make his case to the American people in the face of political peril emphasizes a key difference from Trump.</p>
<p>Throughout his first term, Nixon enjoyed substantially higher approval than Trump. <a href="https://news.gallup.com/poll/116677/presidential-approval-ratings-gallup-historical-statistics-trends.aspx">On average</a>, 56% of Americans approved of the job Nixon was doing in his first term, compared with only 41% for Trump. Liberal elites may have <a href="https://www.nytimes.com/1970/09/26/archives/drugs-case-for-legalizing-marijuana.html">decried Nixon’s claim</a> that he had the support of a “<a href="https://www.pbs.org/wgbh/americanexperience/features/nixon-silent-majority/">silent majority</a>” at the time, but from a historical perspective, his popularity is undeniable.</p>
<p>Trump’s approval tells a different story and illustrates the differences in the breadth and depth of their support. In <a href="https://doi.org/10.25940/ROPER-31087813">February 1972</a>, 52% of Americans approved of the job Nixon was doing: 80% of Republicans, 51% of independents and 36% of Democrats. Compare that with Trump’s approval in <a href="https://news.gallup.com/poll/203198/presidential-approval-ratings-donald-trump.aspx">February 2020</a>: 47% overall approval, 92% approval among Republicans, 42% with independents and 8% with Democrats.</p>
<p>While <a href="https://projects.fivethirtyeight.com/polls/president-general/2024/national/">most recent polls</a> show that Trump is leading in 2024’s apparent rematch of the 2020 election, he rarely eclipses the 50% threshold. Trump is president of a vocal minority, not the silent majority. Trump doesn’t have to appeal to Democrats, or the median voter for that matter, because he has the <a href="https://www.npr.org/sections/thetwo-way/2016/01/23/464129029/donald-trump-i-could-shoot-somebody-and-i-wouldnt-lose-any-voters">undying support</a> of his faction. And the <a href="https://centerforpolitics.org/crystalball/articles/a-brief-history-of-electoral-college-bias/">U.S. system of electing presidents</a> is biased in a way that means his vocal minority can deliver victory.</p><img src="https://counter.theconversation.com/content/224484/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Spencer Goidel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The parallels between Trump and Nixon are abundantly clear. Yet even Nixon acknowledged the fundamental importance of accountability in a democracy.Spencer Goidel, Assistant Professor of Political Science, Auburn UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2120392023-10-10T17:00:40Z2023-10-10T17:00:40ZThe Exorcist at 50: a terrifying film that symbolises the decline of America’s faith and optimism<p><em>Please note this piece contains spoilers.</em></p>
<p>Having made a <a href="https://www.irishnews.com/arts/2018/10/12/news/irish-film-maker-aislinn-clarke-on-her-new-horror-the-devil-s-doorway-1454950/">film about priests making a film</a>, I find myself discussing cinema with actual priests more than most. Invariably, the fathers’ favourite film is <a href="https://www.theguardian.com/film/2023/sep/28/the-exorcist-review-friedkins-head-swivelling-horror-is-still-diabolically-inspired">The Exorcist</a>, in which two priests battle the ancient evil that has possessed a pre-teen girl. </p>
<p>At the climax, Father Damien Karras leaps from the child’s window, plunging down 75 steps to his death, exorcising the demon and saving the child. A hero.</p>
<p>There’s a thrill in seeing yourself depicted on screen, in seeing your vocation elevated to a <a href="https://time.com/6304708/heros-journey-psychology/">hero’s journey</a> and enmeshed into pop culture. I don’t want to know the chef who doesn’t enjoy Pixar’s <a href="https://www.rogerebert.com/reviews/ratatouille-2007">Ratatouille</a>.</p>
<p>But what about the rest of us? Most of us aren’t priests. Most aren’t even Catholic. Indeed, since the release of the film, the reputation of the Catholic church has sunk lower and lower, as <a href="https://www.theguardian.com/world/2010/apr/21/boston-globe-abuse-scandal-catholic">scandal, corruption and abuse</a> have become common knowledge. Yet the priests’ favourite film, which turns 50 this year, remains a household word, where other outstanding movies of the period have found themselves on the street.</p>
<p>The Exorcist is not Catholic propaganda. While the film’s director, <a href="https://www.britannica.com/biography/William-Friedkin">William Friedkin</a>, an agnostic Jew, described the film as being about faith, he meant the concept of faith itself – what the philosopher <a href="https://iep.utm.edu/kierkega/">Søren Kierkegaard</a> considered “holding on to the objective uncertainty with infinite passion”.</p>
<p>For Kierkegaard, faith was a venture, an action one takes in spite of – or because of – not knowing. Friedkin’s faith is not placed in anything named, but the film itself is riddled with uncertainty and culminates in action in the absence of certainty.</p>
<h2>America in crisis</h2>
<p>Friedkin was recognised as one of the premier directors of the 1970s’ all-male <a href="https://www.newwavefilm.com/international/new-hollywood.shtml">New Hollywood</a>, alongside peers such as <a href="https://www.biography.com/movies-tv/francis-ford-coppola">Frances Ford Coppola</a>, <a href="https://www.biography.com/movies-tv/martin-scorsese">Martin Scorsese</a>, <a href="https://www.britannica.com/biography/Alan-J-Pakula">Alan Pakula</a>, and <a href="https://www.theguardian.com/film/2022/jan/07/peter-bogdanovich-obituary">Peter Bogdanovich</a>. This movement responded to the experience of previous decades with films that captured the uncertainty and irresolution of American life: the Vietnam war, the civil rights movement, the Kennedy assassinations, Watergate.</p>
<p>If 1950s, America was a teenybopper full of hope and confidence, the America of the late 1960s was a young adult learning that her parents are only human after all and no one is taking the wheel. Not even Jesus.</p>
<p>In <a href="https://www.theguardian.com/film/2014/oct/10/all-the-presidents-men-watergate-conspiracy-richard-nixon-woodward-bernstein-redford-hoffman">All The President’s Men</a> Pakula reveals the corruption at the heart of American democracy. Watergate was a watershed and faith in American institutions and the “<a href="https://www.theatlantic.com/magazine/archive/1939/04/the-great-american-experiment/653768/">great experiment</a>” never recovered.</p>
<p>Under more recent administrations corruption is expected, even accepted. All The President’s Men is surely a hit among journalists, but the hero class of Pakula’s film has taken a <a href="https://www.ipsos.com/en-uk/impact-declining-trust-media">reputational drubbing in recent decades</a>, a notch above the priesthood.</p>
<p>Yet The Exorcist retains a legacy and place in popular culture that the other paranoid films of New Hollywood don’t.</p>
<p>For Friedkin, uncertainty in our institutions and our understanding is built in. When Regan McNeil becomes possessed by a demon, her mother takes her to a doctor, but psychiatry, psychoanalysis and hypnotherapy don’t work. The latest medical advances don’t work either.</p>
<p>And neither does a medieval Catholicism: the demon chuckles at the priests’ efforts to exorcise it. It mocks them. It even takes a crucifix and – rather than shrinking from it, as any self-respecting screen monster should, it repeatedly inserts the crucifix inside the body of its host. </p>
<p>The Exorcist is not a film about a successful exorcism, but about what we do in the face of uncertainty and the cynical grinning face of the demon doubt. It is not a film about a priest, but about a human being. When Karras takes the demon into himself and jumps from the window, it is literally a leap of faith. He can’t know that it will work, but he acts. Pazuzu, the demon of doubt, would prefer he didn’t act at all.</p>
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<h2>The great unknown</h2>
<p>For me, the film’s most chilling moment comes when Regan interrupts her mother’s raucous shindig to flatly tell a guest (an astronaut): “You’re gonna die up there.” Then she pisses on the carpet like an untrained animal.</p>
<p>The administration that presided over “one giant leap for mankind” was also responsible for Watergate: optimism gave way to cynicism and, in a cynical mindset, it is easier to do nothing at all. The demon here is a head-swivelling personification of imposter syndrome, it comes to remind us of our smallness, our irrelevance, our hopelessness. It speaks with such certainty.</p>
<p>Faith is about not being defeated by the limits of our understanding. We may not have all the answers, but we can be courageous and curious. Faith is action and the hope that action is worth taking. At a time when our institutions and frameworks for understanding the world continually let us down, perhaps we need this lesson more than ever.</p>
<p>While astronauts facing a journey into the unknown chasm of space may die up there, it is the giant leap for mankind that inspires them to go. The Exorcist perseveres, because it is hopeful, not hopeless. It says something necessary about humanity. It has faith in us.</p>
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<p class="fine-print"><em><span>Aislinn Clarke does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Made at a time when America was facing crises on many fronts, William Friedkin’s film has profound things to say about humanity and society.Aislinn Clarke, Lecturer in Film Studies, Queen's University BelfastLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2121882023-08-31T12:19:42Z2023-08-31T12:19:42ZSpecial counsels, like the one leading the Justice Department’s investigation of Hunter Biden, are intended to be independent − but they aren’t entirely<figure><img src="https://images.theconversation.com/files/545070/original/file-20230828-25-umot03.jpg?ixlib=rb-1.1.0&rect=35%2C17%2C5955%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General Merrick Garland announces on Aug. 11, 2023, that he has appointed a special counsel to handle the investigations into Hunter Biden.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorney-general-merrick-garland-conducts-a-news-conference-news-photo/1592786287">Tom Williams/CQ-Roll Call, Inc via Getty Images</a></span></figcaption></figure><p>On <a href="https://www.npr.org/2023/06/20/1087173827/hunter-biden">June 20</a>, 2023, <a href="https://theconversation.com/a-brief-history-of-colorful-presidential-relatives-from-alice-roosevelt-to-hunter-biden-208183">Hunter Biden</a>, the second son of President Joe Biden, entered into <a href="https://www.collinsdictionary.com/us/dictionary/english/plea-agreement#google_vignette">a plea agreement</a> with prosecutors <a href="https://www.pbs.org/newshour/nation/hunter-biden-agrees-to-plea-deal-for-income-tax-and-illegal-weapon-charges">related to tax-related charges and the illegal possession of a firearm</a>.</p>
<p>On <a href="https://www.politico.com/news/2023/07/26/hunter-biden-plea-deal-00108276">July 26</a>, <a href="https://www.politico.com/news/2023/07/26/proposed-hunter-biden-plea-agreement-00108426">the plea agreement</a> was challenged by <a href="https://abcnews.go.com/Politics/maryellen-noreika-trump-appointed-judge-weighing-hunter-bidens/story?id=101670909">the judge in the case</a>. <a href="https://www.npr.org/2023/07/26/1190211798/hunter-biden-plea-tax-charges">She wanted to know more</a> about any immunity being offered, given that Hunter Biden is under several <a href="https://www.nytimes.com/2023/08/11/us/politics/hunter-biden-legal-troubles-timeline.html">federal investigations</a>.</p>
<p>After the prosecution and defense <a href="https://theconversation.com/hunter-bidens-plea-agreement-renegotiation-is-rare-a-law-professor-explains-what-usually-happens-210531">failed to renegotiate</a> the deal, Attorney General Merrick Garland announced on Aug. 11 that <a href="https://www.justice.gov/usao-de/meet-us-attorney">U.S. Attorney David Weiss</a>, the Donald Trump-appointed lead federal prosecutor for Delaware who had already been investigating the case, had been <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-2">appointed as special counsel</a> so that he would have “the authority he needs to conduct a thorough investigation and to continue to take the steps he deems appropriate independently, based only on the facts and the law.”</p>
<p>After the appointment, Sen. Dick Durbin, an Illinois Democrat, <a href="https://www.durbin.senate.gov/newsroom/press-releases/durbin-statement-on-the-appointment-of-us-attorney-weiss-as-special-counsel-to-investigate-hunter-biden-matters">praised Garland</a> for being “committed to avoiding even the appearance of politicization at the Justice Department.”</p>
<p>Sen. Lindsey Graham, a South Carolina Republican, however, <a href="https://www.foxnews.com/media/sen-graham-slams-doj-special-counsel-hunter-biden-probe-dumb-political-decision">attacked Weiss’ appointment</a> as “<a href="https://youtu.be/nxmlZMIEqio?feature=shared&t=376">a dumb political decision,</a>” despite having <a href="https://www.cassidy.senate.gov/imo/media/doc/Hunter%20Biden%20Special%20Counsel%20Letter%20FINAL.pdf">previously supported it</a>. </p>
<p>From my perspective as <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">a political scientist</a>, I believe that while special counsels are intended to be independent, in practice they aren’t entirely. Here’s why.</p>
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<a href="https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man stands at a lectern and gestures with one hand." src="https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=717&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=717&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=717&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=901&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=901&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=901&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">David Weiss, pictured here in 2009, has been a federal prosecutor in Delaware since 2007. He is now also a special counsel investigating Hunter Biden.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/IranSmugglingCharges/583ef025e2af4147807840b335c4e391/photo">AP Photo/Ron Soliman</a></span>
</figcaption>
</figure>
<h2>Independent and special counsels</h2>
<p>Ensuring impartiality in the Justice Department can be difficult, as the attorney general is <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">appointed by</a> – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general to pursue a political agenda. President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">Richard Nixon</a> did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts. </p>
<p>On the evening of <a href="https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre">Oct. 20, 1973</a>, Nixon ordered Attorney General <a href="https://www.justice.gov/ag/bio/richardson-elliot-lee">Elliot Richardson</a> to fire <a href="https://www.justice.gov/osg/bio/archibald-cox">Archibald Cox</a>, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General <a href="https://www.npr.org/2019/11/27/783492672/william-ruckelshaus-who-defied-nixon-in-saturday-night-massacre-has-died-at-87">William Ruckelshaus</a> to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General <a href="https://www.justice.gov/osg/bio/robert-h-bork">Robert Bork</a>, the next most senior official at the Justice Department, to fire Cox. Bork complied. </p>
<p>This shocking series of events, often referred to as the <a href="https://www.youtube.com/watch?v=LZuthKhjAfk">Saturday Night Massacre</a>, demonstrated how presidents could exercise political power over criminal investigations.</p>
<p>As a result of the Watergate scandal, Congress passed the <a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">Ethics in Government Act of 1978</a>. This allowed for investigations into misconduct that could operate outside of presidential control.</p>
<p>After passage of this legislation, if the attorney general received “specific information” alleging that the president, <a href="https://theconversation.com/what-does-the-vice-president-do-152467">vice president</a> or other <a href="https://www.law.cornell.edu/uscode/text/28/591">high-ranking executive branch officials</a> had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo of a man in a suit pointing at a table stacked with bound volumes." src="https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Richard Nixon, here pointing to transcripts of White House tapes he agreed to turn over to congressional investigators, was an inspiration for the 1978 law that created truly independent counsels. It expired in 1999.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PresidentsLegalTroubles/dbf0e83250c040109016f9bbb50081ea/photo">AP Photo</a></span>
</figcaption>
</figure>
<p>The Ethics in Government Act also disqualified Justice Department employees, including the attorney general, from participating in any investigation or prosecution that could “<a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">result in a personal, financial, or political conflict of interest</a>, or the appearance thereof.”</p>
<p>In the decades since the law’s passage, independent counsels investigated <a href="https://www.hsdl.org/c/abstract/?docid=814877">Republicans</a> and <a href="https://www.govinfo.gov/content/pkg/CDOC-105hdoc310/pdf/CDOC-105hdoc310.pdf">Democrats</a> alike. In 1999, <a href="https://www.cnn.com/ALLPOLITICS/stories/1999/03/01/independent.counsel/">Congress</a> let the Ethics in Government Act expire. That year, then-Attorney General <a href="https://www.justice.gov/archive/ag/testimony/1999/aggovern031799.htm">Janet Reno</a> <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel063099.htm">authorized</a> the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated. </p>
<p>Robert Mueller, who was appointed in <a href="https://www.justice.gov/opa/pr/appointment-special-counsel">2017</a> by Deputy Attorney General Rod Rosenstein to investigate <a href="https://theconversation.com/russian-interventions-in-other-peoples-elections-a-brief-history-74406">possible Russian interference</a> in the 2016 elections and <a href="https://theconversation.com/fbis-russia-probe-threatens-a-reckoning-for-team-trump-75002">possible links between the Trump campaign and the Russian government</a>, was a special counsel. Some Republicans accused him of <a href="https://www.bbc.com/news/world-us-canada-42372603">bias</a>, despite his long career serving under <a href="https://www.npr.org/2018/02/01/582358540/muellers-reputation-in-washington-is-stunningly-bipartisan-journalist-says">both Democratic and Republican presidents</a>.</p>
<p>In <a href="https://www.justice.gov/sco-durham">2020</a>, John Durham – another <a href="https://www.nbcconnecticut.com/news/local/u-s-attorney-for-connecticut-john-durham-resigns/2432294/">veteran</a> of the Justice Department – was appointed as special counsel to <a href="https://www.justice.gov/storage/durhamreport.pdf">investigate</a> the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of <a href="https://www.npr.org/2022/02/15/1080841516/john-durham-sussmann-trump-russia-investigation">political prosecution</a>. Sussmann was later <a href="https://www.nytimes.com/2022/05/31/us/politics/michael-sussmann-durham-fbi.html">acquitted</a>.</p>
<h2>Politicizing the process</h2>
<p>Although special counsels were meant to resemble independent counsels, there are notable differences.</p>
<p><a href="https://sgp.fas.org/crs/misc/R43112.pdf">For instance</a>, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the <a href="https://www.supremecourt.gov/about/about.aspx">chief justice</a> <a href="https://theconversation.com/states-pick-judges-very-differently-from-us-supreme-court-appointments-160142">of the United States</a>.</p>
<p>Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Justice Department regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or <a href="https://www.politico.com/story/2017/06/13/can-trump-fire-special-counsel-robert-mueller-239500">end</a> a special counsel investigation. </p>
<p>For example, on at least one occasion, Trump <a href="https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html">sought to have Mueller dismissed</a>. When his attorney general, <a href="https://theconversation.com/3-things-jeff-sessions-did-as-attorney-general-that-history-should-remember-106614">Jeff Sessions</a>, <a href="https://twitter.com/realDonaldTrump/status/1235181043881299969">refused to comply</a>, Trump <a href="https://www.washingtonpost.com/politics/2020/03/04/an-emboldened-trump-says-quiet-part-out-loud-about-why-he-fired-jeff-sessions/">fired</a> him.</p>
<p>Sessions was later <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">replaced</a> by <a href="https://www.justice.gov/ag/bio/barr-william-pelham">William Barr</a>, who previously served as attorney general under President George H.W. Bush. Prior to his appointment, Barr sent an unsolicited memo to the Justice Department <a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">defending</a> Trump by arguing that presidents have “<a href="https://www.wsj.com/public/resources/documents/BarrMueller.pdf">complete authority to start or stop a law enforcement proceeding</a>.” </p>
<p><a href="https://doi.org/10.1371/journal.pone.0234938">In my own research</a>, <a href="https://doi.org/10.1016/j.soscij.2019.04.006">I have found</a> that abuses of power are more common in situations in which the president and the attorney general are political allies.</p>
<p>For instance, after Mueller finished his <a href="https://www.justice.gov/archives/sco/file/1373816/download">report</a> in 2019, Barr released a <a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/218b8095-c5e3-4eab-9135-4170f5b3e87f/">summary</a> of its “principal conclusions.” Later, Barr’s summary was criticized for “<a href="https://www.washingtonpost.com/context/special-counsel-mueller-s-letter-to-attorney-general-barr/e32695eb-c379-4696-845a-1b45ad32fff1/">not fully captur[ing] the context, nature, and substance</a>” of Mueller’s work.</p>
<p>In 2020, a Republican-appointed judge <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/bd363044-e2ec-4a02-b0b3-43fbc48b2f49/note/f003c01c-cde9-4c1e-a926-bc74e461ca7f.pdf">ruled</a> that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”</p>
<h2>To be or not to be free of partisanship</h2>
<p>The independence of the Justice Department rests, in part, <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">on who occupies</a> the offices of president and attorney general.</p>
<p>Trump, for example, <a href="https://www.washingtonpost.com/politics/post-impeachment-trump-declares-himself-the-chief-law-enforcement-officer-of-america/2020/02/18/b8ff49c0-5290-11ea-b119-4faabac6674f_story.html">saw himself</a> as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.” </p>
<p>Meanwhile, Joe Biden has <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3093&context=nclr">a long history</a> of supporting the independence of Justice Department investigations, dating back to his <a href="https://www.judiciary.senate.gov/about/chairman/previous">1987-1995 tenure as chairman of the Senate Judiciary Committee</a>.</p>
<p>Barr once <a href="https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-yates/2017/02/01/5981d890-e809-11e6-80c2-30e57e57e05d_story.html">argued</a> that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.” </p>
<p>In contrast, Garland – a former U.S. circuit judge – <a href="https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland">insists</a> that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1690111067576254464"}"></div></p>
<figure><figcaption><span class="caption">Republican Congresswoman Marjorie Taylor Greene has claimed the Biden administration is using the Justice Department unfairly.</span></figcaption></figure>
<p>Garland has served as attorney general for only 2½ years, yet at this point he has appointed more special counsels than <a href="https://www.reuters.com/article/usa-trump-russia-investigations-idINKCN1R01C1">any of</a> <a href="https://www.axios.com/2023/01/13/special-counsel-history-biden-trump-classified">his predecessors</a>.</p>
<p>The first, <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">Jack Smith</a>, is overseeing investigations into former President Donald Trump’s role in the <a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Jan. 6 insurrection</a>, as well as Trump’s <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">handling of classified government documents</a> upon leaving office in 2021. The second, <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-1">Robert Hur</a>, is overseeing President Joe Biden’s handling of classified documents after leaving office as <a href="https://theconversation.com/kamala-harris-has-tied-the-record-for-the-most-tie-breaking-votes-in-senate-history-a-brief-overview-of-what-vice-presidents-do-210444">vice president</a> in 2017. Weiss’ investigation of Hunter Biden is Garland’s third special counsel appointment.</p>
<p>However, despite attempts by Garland to keep sensitive cases an arm’s length away, the reality is that special counsels – by design – are not as independent as the independent counsels of the past. As a result, the perception of <a href="https://truthsocial.com/@realDonaldTrump/posts/109423468870178087">political prosecution</a> can be hard to avoid.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/special-counsels-like-those-examining-bidens-and-trumps-handling-of-classified-documents-are-intended-to-be-independent-but-they-arent-entirely-197773">article</a> published Jan. 13, 2023, which was an updated version of an <a href="https://theconversation.com/special-counsels-like-the-one-leading-the-department-of-justices-investigation-of-trump-are-intended-to-be-independent-but-they-arent-entirely-195640">article</a> originally published Dec. 14, 2022.</em></p><img src="https://counter.theconversation.com/content/212188/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special counsels can help presidential administrations avoid the perception of bias, but they are not as independent as the independent counsels of the past.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2081432023-06-28T12:35:20Z2023-06-28T12:35:20ZThe New York Times worried that publishing the Pentagon Papers would destroy the newspaper — and the reputation of the US<figure><img src="https://images.theconversation.com/files/534167/original/file-20230626-5693-i6hmnh.jpeg?ixlib=rb-1.1.0&rect=17%2C17%2C2975%2C1808&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The New York Times resumed publication of its series of articles based on the Pentagon Papers in its July 1, 1971, edition, after it was given the green light by the Supreme Court. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PentagonPapersInTheTimes/61378866a8224e64be95556e7b29dcb5/photo?Query=Pentagon%20Papers%20New%20York%20Times&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1247&currentItemNo=0&vs=true">AP Photo/Jim Wells</a></span></figcaption></figure><p>The late <a href="https://www.nytimes.com/2023/06/16/us/daniel-ellsberg-dead.html">Daniel Ellsberg</a> was a former government contractor who leaked the classified history of the Vietnam War known as the Pentagon Papers to The New York Times. </p>
<p>In doing so, Ellsberg, who died on June 16, <a href="https://www.npr.org/2021/06/18/1007573283/how-the-pentagon-papers-changed-public-perception-of-the-war-in-vietnam">accelerated a shift in public opinion</a> against U.S. involvement in the Vietnam War and, some historians argue, led the Nixon administration to become ever more paranoid and secretive, eventually leading to the Watergate scandal and Nixon’s resignation. </p>
<p>But perhaps the most lasting effect the publication of the Pentagon Papers had was on The New York Times, which had been a solidly pro-establishment newspaper. </p>
<p>The Times almost chose not to publish the papers, since the editor and publisher worried about being sued or prosecuted by the federal government. But they also worried about ruining the international reputation of the U.S., which had reached new highs after World War II. </p>
<p>The leadership of the Times in the early 1970s was a generation older than the <a href="https://upress.missouri.edu/9780826222886/provoking-the-press/">younger reporters who agitated for change</a> from within and from without. They saw the stodgy, institutional Times as unable to accurately portray the turmoil of the 1960s and 1970s and pushed for the paper to reform itself to better speak to younger readers.</p>
<p>The decision to publish did not destroy the Times or the global standing of the U.S. It did begin to chip away at the hidebound paper’s reluctance to change too quickly or to damage political ties to the establishment. </p>
<p>While The New York Times is still slow to change, even more than 50 years after the Pentagon Papers affair, the incident did demonstrate that the paper was willing to jeopardize its connections to other powerful institutions, including the government, in order to serve the greater good – the public interest.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A cover page of a publication, labeled 'Top Secret - Sensitive' and entitled 'United States - Vietnam Relations, 1945-1967'" src="https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=805&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=805&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=805&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1012&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1012&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1012&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The cover page of ‘The History of U.S. Decision-making Process on Vietnam,’ otherwise known as the Pentagon Papers.</span>
<span class="attribution"><a class="source" href="https://nara-media-001.s3.amazonaws.com/arcmedia/research/pentagon-papers/Pentagon-Papers-Part-I.pdf">US National Archives</a></span>
</figcaption>
</figure>
<h2>The conservative New York Times?</h2>
<p><a href="https://scholar.google.com/citations?user=gJ-kc4sAAAAJ&hl=en&oi=ao">I</a> am a historian of American journalism who has studied the turbulent 1960s and early 1970s and the turmoil it created in news organizations, and <a href="https://www.pennpress.org/9780812248883/media-nation/">I have written about the Pentagon Papers</a> and The New York Times’ publication process. I based this research on the journal of A.M. “Abe” Rosenthal, who was the top editor at the paper during this period. Rosenthal’s journal is held at the <a href="https://www.nypl.org/locations/schwarzman/manuscripts-division">New York Public Library</a>.</p>
<p>To those who charge – wrongly – that The <a href="https://www.nytimes.com/2016/07/24/public-editor/liz-spayd-the-new-york-times-public-editor.html">New York Times is a left-wing mouthpiece</a>, it may come as a surprise that The New York Times of 1971 was a conservative institution, unwilling to make waves or make itself the story. The paper’s editorial and business leadership was also fairly politically conservative.</p>
<p>Harrison Salisbury, who was then an associate editor at the paper, recalled the politics of the paper’s executives and top editors in his 1980 memoir. None of the editors could “have won a prize in a flaming liberal contest,” he wrote. And Rosenthal was “the most conservative editor on the paper.” According to Salisbury, Rosenthal chafed at the counterculture and positioned himself “firmly against what he saw as shapeless anarchy swirling up from the streets.”</p>
<p>In the pages of the Times, this manifested as pro-establishment stories. </p>
<p>Times reporter and Pulitzer Prize winner <a href="http://www.davidhalberstam.com">David Halberstam</a> criticized his employer for choosing the government’s version of events in Vietnam over what Halberstam knew from his reporting to be true. </p>
<p>J. Anthony Lukas, another Pulitzer Prize winner for the paper, fought to characterize the trial of <a href="https://www.smithsonianmag.com/history/true-story-trial-chicago-7-180976063/">the Chicago 7</a>, a prosecution of political agitators at the 1968 Democratic National Convention, as a political show trial. The Times insisted that Lukas take the trial at face value, as the government presented it, which agitated Lukas enough that <a href="https://www.thecrimson.com/article/1970/11/17/chicago-the-barnyard-epithet-and-other/">he wrote a book about it</a>.</p>
<p>The Pentagon Papers were the government’s version of the early days of the Vietnam War, but they were a version that the government had not released to the public. The Defense Department had commissioned a secret history of the Vietnam War in order to avoid making the same mistakes it had made in that war in the future. </p>
<p>This study was highly classified because the story it told was not the same story that President Lyndon Johnson’s administration had told to the public, to news organizations or even to Congress. Instead, the papers showed that the government had systematically lied.</p>
<p>When reporter <a href="https://www.nytimes.com/2021/01/07/us/pentagon-papers-neil-sheehan.html">Neil Sheehan photocopied all of the documents</a> that Ellsberg had pilfered and made available to him, he did not immediately inform the Times’s top editor, or even Ellsberg himself. Sheehan knew that the papers were an explosive story, but he also knew that they were classified and that merely possessing them, let alone publishing them, would be a federal crime. </p>
<p>Ellsberg was certainly at risk of going to prison for smuggling them out, and the Times might also face substantial legal penalties. Rosenthal first heard of the papers in April 1971, at least a few weeks after Sheehan obtained them and long after Sheehan knew of their existence. </p>
<p>In his journal, Rosenthal wrote that the Times was “involved in one of the biggest, most voluminous and probably one of the saddest and most damaging stories it has ever confronted journalistically.” </p>
<p>Rosenthal immediately realized just how important the handling of the Pentagon Papers would be to the Times and for the country. In his journal, he ruminated on his loyalty to the Times and the risk that publishing the Pentagon Papers might damage or even destroy the paper if the government prosecuted individual reporters or editors – or successfully sued the Times out of business. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A dark-haired man in a suit and tie, wearing glasses and sitting down, looking happy." src="https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=747&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=747&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=747&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=939&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=939&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=939&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Abe Rosenthal in 1965. He joined The New York Times in 1943 and worked there for 56 years, until 1999.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbeRosenthal/c50b3644ffc545368fc4cad4bc1075d8/photo?Query=Abe%20Rosenthal&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1&currentItemNo=0">AP</a></span>
</figcaption>
</figure>
<h2>Challenging the establishment</h2>
<p>The Times was not the only institution that might be damaged by publication. The reputation of the entire nation was at stake, and this caused Rosenthal more worry than protecting the paper. </p>
<p>He wondered if loyalty to country lay in “adhering to a set of long accepted rules and laws, designed not only to protect politicians in general but, to the minds of many, to protect the country itself? Or did it lie in facing a decision to break those rules and laws?” In other words, would breaking the government’s rules on classification make the United States stronger by forcing the country to publicly grapple with its shortcomings?</p>
<p>Rosenthal even worried for a time that the Pentagon Papers were fake, concocted by a student activist group to lure the Times into legal peril and public disrepute.</p>
<p>Rosenthal rented first one, and then two suites at a hotel in New York so that the writers and editors could work in total secrecy away from the paper’s newsroom, sorting through the papers and making sense of them. Editors, executives and lawyers debated over whether stories about the papers could or should be published at all.</p>
<p>Despite his own doubts, Rosenthal eventually decided to move ahead. He had to persuade the publisher, Arthur Ochs “Punch” Sulzberger, that the paper should run the stories, and Sulzberger agreed – against the advice of the paper’s law firm. </p>
<p>Rosenthal told Sulzberger that “it would make a mockery of everything we ever told reporters, because how could we possibly ask them to go out in search for the truth at a time when the ultimate truth, the biggest story ever presented to The Times, had been placed in our laps and we turned away from it out of fear of the consequences of publication?”</p>
<p>Ellsberg himself only learned the Times would publish their series on the Pentagon Papers when the pages of the first installment had already been set in type and prepared for publication. At that point, even the source of the documents couldn’t stop the presses.</p>
<p>For the Times, the Pentagon Papers stories were an early reform of many that would come under Rosenthal and his successors. The reforms tried to address the concerns of the younger generation of reporters who were better in touch with a changing United States. They included expanded arts and cultural coverage, better treatment of women’s issues, and accountability measures such as <a href="https://doi.org/10.1080/00947679.2017.12059156">a daily corrections box</a>.</p>
<p>Rosenthal, and ultimately the Times as a whole, recognized that as the nation and world changed, so must the Times, to fulfill its duty to the public – and the public interest.</p><img src="https://counter.theconversation.com/content/208143/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin M. Lerner does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The New York Times’ publication of the Pentagon Papers showed the paper was willing to jeopardize connections to other powerful institutions, including the government, to serve the public interest.Kevin M. Lerner, Associate Professor of Journalism, Marist CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2031282023-04-04T19:07:56Z2023-04-04T19:07:56ZForget Stormy Daniels and Michael Cohen — it’s accountants who could seal Trump’s fate<figure><img src="https://images.theconversation.com/files/519389/original/file-20230404-2515-t8wel.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C7601%2C4005&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former president Donald Trump sits at the defence table with his legal team in a Manhattan court. He's facing charges related to falsifying business records in a hush money investigation, the first U.S. president ever to be charged with a crime. </span> <span class="attribution"><span class="source">(AP Photo/Seth Wenig)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/forget-stormy-daniels-and-michael-cohen-—-it-s-accountants-who-could-seal-trump-s-fate" width="100%" height="400"></iframe>
<p>Donald Trump has been formally charged with <a href="https://www.cnbc.com/2023/04/04/-donald-trump-unsealed-indictment-ny-arraingment.html">34 felony counts of falsifying business records</a> after an investigation into hush money payments to three people, including a porn star.</p>
<p>The former president of the United States <a href="https://www.reuters.com/world/us/trump-faces-day-court-historic-us-first-2023-04-04/">pleaded not guilty</a> to the charges. </p>
<p>The <a href="https://thehill.com/homenews/3933605-read-trump-indictment-and-statement-of-facts/">statement of facts</a> compiled by prosecutors <a href="https://www.nbcnews.com/politics/donald-trump/trump-news-arrested-updated-new-york-court-rcna77707">alleges Trump “repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.”</a></p>
<p>It includes information about payments to adult film star Stephanie Clifford — better known as Stormy Daniels — Playboy model Karen McDougal and a former Trump Tower doorman who claimed Trump had a child out of wedlock with an ex-housekeeper.</p>
<figure class="align-right ">
<img alt="The back of a blond man's head is seen as he walks into a courthouse." src="https://images.theconversation.com/files/519381/original/file-20230404-20-tpbne3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/519381/original/file-20230404-20-tpbne3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519381/original/file-20230404-20-tpbne3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519381/original/file-20230404-20-tpbne3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519381/original/file-20230404-20-tpbne3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519381/original/file-20230404-20-tpbne3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519381/original/file-20230404-20-tpbne3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Trump arrives at the Manhattan District Attorney’s office.</span>
<span class="attribution"><span class="source">(AP Photo/John Minchillo)</span></span>
</figcaption>
</figure>
<p>Trump is facing a slew of other legal dangers, including <a href="https://www.nytimes.com/article/trump-investigations-civil-criminal.html">potential prosecution for allegedly hiding classified government documents at his estate in Florida, trying to change the vote in Georgia following the 2020 presidential election and for encouraging the Jan. 6, 2021 insurrection</a>.</p>
<p>But in the New York case, we already know that there was one payment made to Daniels <a href="https://globalnews.ca/news/9593888/trump-stormy-daniels-hush-money-case-timeline/">because there’s an audit trail of the payment being made by convicted felon Michael Cohen</a>, the former Trump fixer and a key prosecution witness.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-the-indictment-of-donald-trump-is-a-strange-and-different-event-for-america-according-to-political-scientists-203100">How the indictment of Donald Trump is a 'strange and different' event for America, according to political scientists</a>
</strong>
</em>
</p>
<hr>
<p>For years, the payment — issued just before the 2016 presidential election — has raised legal and ethical questions about whether it <a href="https://www.npr.org/2018/03/25/596805368/payment-to-stormy-daniels-may-have-broken-campaign-finance-law">violated federal campaign finance laws</a>, either because it wasn’t disclosed as a campaign contribution or because campaign funds might have been used to pay Daniels off.</p>
<figure class="align-left ">
<img alt="A man in a dark suit walks along a street in the evening." src="https://images.theconversation.com/files/519136/original/file-20230403-24-5kqu35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/519136/original/file-20230403-24-5kqu35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519136/original/file-20230403-24-5kqu35.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519136/original/file-20230403-24-5kqu35.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519136/original/file-20230403-24-5kqu35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519136/original/file-20230403-24-5kqu35.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519136/original/file-20230403-24-5kqu35.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Michael Cohen leaves the New York District Attorney’s office after testifying before a grand jury in New York in March 2023. (AP Photo/Yuki Iwamura)</span>
<span class="attribution"><span class="source">(AP Photo/Yuki Iwamura)</span></span>
</figcaption>
</figure>
<p>Cohen eventually <a href="https://www.justice.gov/usao-sdny/pr/michael-cohen-pleads-guilty-manhattan-federal-court-eight-counts-including-criminal-tax">pleaded guilty to campaign finance charges stemming from his involvement in the payments to Daniels</a> and was <a href="https://www.washingtonpost.com/world/national-security/michael-cohen-scheduled-to-be-sentenced-for-crimes-committed-while-working-for-trump/2018/12/11/57226ff2-fcbf-11e8-83c0-b06139e540e5_story.html">sentenced to three years in prison</a>.</p>
<p>But he isn’t someone who seems altogether reliable given his past crimes. Trump’s defence team is therefore undoubtedly going to do everything possible to discredit the disbarred ex-lawyer, ex-inmate and convicted perjurer.</p>
<p>Does that mean Trump has nothing to fear? Not exactly. So who should Trump fear, especially given the nature of the charges against him?</p>
<p><a href="https://doi.org/10.1080/01900692.2021.2009855">The accountants</a>. </p>
<h2>Follow the money</h2>
<p><a href="https://www.thedailybeast.com/the-bean-counter-who-put-al-capone-in-the-slammer">A dogged accountant brought down infamous gangster Al Capone</a> in the 1920s and the 1970s-era Watergate scandal was largely uncovered by reporters who heeded advice to <a href="https://www.npr.org/2012/06/16/154997482/follow-the-money-on-the-trail-of-watergate-lore">“follow the money.”</a></p>
<p>How might accountants <a href="https://www.thenation.com/article/archive/could-an-army-of-accountants-bring-down-trump/">hold the key to Trump’s fate</a> on the charges he’s facing in New York?</p>
<p>Let’s start with a provable notion: The former president has a pattern of not paying his bills. In 2016, <em>USA Today</em> reported that <a href="https://www.usatoday.com/story/news/politics/elections/2016/06/09/donald-trump-unpaid-bills-republican-president-laswuits/85297274/">Trump “has been involved in more than 3,500 lawsuits over the past three decades” pertaining to allegations of unpaid bills.</a></p>
<p>The newspaper documented the people who accused Trump and his businesses of failing to pay them for their work. They included a glass company in New Jersey, a carpet company, 48 waiters, dozens of bartenders and other hourly workers and real estate brokers who’d sold his properties.</p>
<p>Most critically, Trump allegedly stiffed “several law firms that once represented him in these suits and others,” according to <em>USA Today.</em> </p>
<p>Furthermore, the newspaper reported that “the number of companies and others alleging he hasn’t paid suggests that either his companies have a poor track record hiring workers and assessing contractors, or that Trump businesses renege on contracts … as is alleged in dozens of court cases.”</p>
<p>Even to this day, many bills have allegedly still not been paid — and are continuing to pile up. </p>
<p>For example, <a href="https://www.ctvnews.ca/world/cities-angry-with-trump-over-millions-in-unpaid-rally-expenses-1.5269495">some American cities allege Trump owes them nearly $2 million from rallies dating back to 2016</a>. His Twitter rival, Truth Social, also reportedly <a href="https://www.salon.com/2022/08/26/trump-never-pays-his-bills-truth-social-reportedly-stiffs-contractor-amid-financial-disarray">stiffed a contractor</a> in the latest sign of financial disarray at the troubled social network, according to <a href="https://www.foxbusiness.com/features/trump-social-media-app-facing-financial-fallout">Fox Business</a>. </p>
<figure class="align-center ">
<img alt="A rotund man with raised arms speaks into a microphone at a podium with the presidential seal on it." src="https://images.theconversation.com/files/519135/original/file-20230403-1441-zmvvtn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519135/original/file-20230403-1441-zmvvtn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519135/original/file-20230403-1441-zmvvtn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519135/original/file-20230403-1441-zmvvtn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519135/original/file-20230403-1441-zmvvtn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519135/original/file-20230403-1441-zmvvtn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519135/original/file-20230403-1441-zmvvtn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Donald Trump speaks during a campaign rally in January 2020 in Wildwood, N.J. The city is still reportedly waiting for him to pay back tens of thousands of dollars in police and security overtime.</span>
<span class="attribution"><span class="source">(AP Photo/ Evan Vucci)</span></span>
</figcaption>
</figure>
<h2>Trump’s cheque to Cohen</h2>
<p>Accountants could simply present this record to the court during Trump’s New York trial and ask a simple question: If Trump constantly refuses to pay his bills and consistently stiffs people he does business with, why did he instantly whip off a cheque to Cohen for US$130,000 without so much as a request for an itemized bill?</p>
<p>In his first public remarks on the scandal in 2018, <a href="https://www.cbsnews.com/news/trump-says-he-was-unaware-of-stormy-daniels-payment/">Trump denied any awareness of the payment to Daniels</a>. Not long after that, he changed his story, acknowledging the $130,000 payout to Daniels, but said a non-disclosure agreement was “used to stop the false and extortionist accusations made by her about an affair.”</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"991992302267785216"}"></div></p>
<p>Regardless of Trump’s change of tune, the case against him isn’t so much dependent upon Cohen’s testimony about the purpose of the $130,000 payment — it’s that Trump failed to ask for any documentation about it. </p>
<p>Cohen would have had to work a lot of hours to drum up $130,000 in billable fees. It stretches credibility that a man like Trump, whose dollars apparently must be figuratively pried from his hands, asked no questions, demanded no details, no breakdown and no documentation about a $130,000 bill and other pricey payments. </p>
<p>Forget Stormy Daniels. Forget Michael Cohen. Accountants will be raising this potentially damning question during the legal proceedings against Trump: Why would a $130,000 bill be so quickly and unquestionably paid and then reported only — and vaguely — as a lawyer’s fee?</p><img src="https://counter.theconversation.com/content/203128/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jerry Paul Sheppard does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Accountants spurred Al Capone’s downfall and the Watergate scandal was revealed when reporters ‘followed the money.’ Will they also bring down Donald Trump?Jerry Paul Sheppard, Associate Professor of Business Administration, Simon Fraser UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1964512023-03-30T22:30:50Z2023-03-30T22:30:50ZManhattan grand jury votes to indict Donald Trump, showing he, like all other presidents, is not an imperial king<figure><img src="https://images.theconversation.com/files/518609/original/file-20230330-20-6w7wz.jpg?ixlib=rb-1.1.0&rect=0%2C16%2C5391%2C3567&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump's indictment by a Manhattan grand jury will test his legal and political power.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-speaks-during-a-rally-at-news-photo/1476375309">Brandon Bell/Getty Images</a></span></figcaption></figure><p>A Manhattan grand jury voted to indict former President Donald Trump on March 30, 2023, for his <a href="https://www.reuters.com/legal/trumps-alleged-hush-money-payments-path-criminal-charges-2023-03-30/">alleged role in paying porn star</a> Stormy Daniels hush money.</p>
<p>Trump lawyer Joe Tacopina <a href="https://www.pbs.org/newshour/politics/donald-trump-indicted-lawyer-says">confirmed the indictment</a>.</p>
<p>The New York Times reported that it is not yet clear <a href="https://www.nytimes.com/live/2023/03/30/nyregion/trump-indictment-news">what exact charges Trump will face</a>, but a formal indictment will likely be issued in the next few days. Manhattan District Attorney Alvin Bragg is <a href="https://apnews.com/article/who-is-alvin-bragg-trump-manhattan-da-d77a4ec8df9a2b2b35f6e8bb9a52a5a7">the first prosecutor</a> ever to issue an indictment against a former president. Trump is still the center of <a href="https://www.nytimes.com/article/trump-investigations-civil-criminal.html">several ongoing investigations</a> regarding other alleged criminal activity, including actions he took while in office. </p>
<p>American history is rife with presidents who have used their office to extend executive authority. </p>
<p>Presidents are not kings. George Washington <a href="https://www.npr.org/sections/deceptivecadence/2011/02/20/133499991/sing-out-mr-president-george-washington-down-on-the-farm">once reflected on this distinction</a>, saying, “I had rather be on my farm than be emperor of the world.”</p>
<p>But American politics and presidency scholars – <a href="https://scholar.google.com/citations?user=_khILTgAAAAJ&hl=en">including me</a> – have long worried about <a href="https://www.worldcat.org/title/imperial-presidency/oclc/704887">the idea of an imperial presidency</a> – <a href="https://politicaldictionary.com/words/imperial-presidency/">meaning, a president</a> who tries to exert a level of control beyond what the Constitution spells out.</p>
<p>Trump was just another example of a president acting as if he was king by just another name.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People stand behind a large banner that says 'indict Trump,' and hold up their own small signs in front of an official government building." src="https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People protest in Manhattan in April 2022, demanding the indictment of former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1390386928/photo/former-us-president-trump-stop-running-for-president-in-2024.jpg?s=1024x1024&w=gi&k=20&c=G022z32BTLMpcY-MqVx79QdM4GN3-b_fU4W2CR_D1g0=">Pablo Monsalve/VIEWpress</a></span>
</figcaption>
</figure>
<h2>Expanding role of the presidency</h2>
<p>While some early presidents, notably<a href="https://millercenter.org/president/jackson/impact-and-legacy"> Andrew Jackson</a> and<a href="https://jmp.princeton.edu/events/abraham-lincolns-invention-presidential-war-powers"> Abraham Lincoln,</a> expanded the executive branch, most were constrained by the dominance of the legislative branch in their day.</p>
<p>The growth of the executive branch in terms of size and power began in earnest during the 20th century. </p>
<p>Franklin Roosevelt <a href="https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/">attempted to pack</a> the Supreme Court to overcome opposition to his <a href="https://politicaldictionary.com/words/imperial-presidency/">New Deal legislation</a>, a series of public works and spending projects in the 1930s.</p>
<p>Roosevelt wanted to add a justice for every existing judge on the court who did not retire by age 70 – but it was a transparent attempt to alter the court’s composition to favor his agenda, and <a href="https://supremecourthistory.org/schs-historical-documentaries/fdr-courtpacking-controversy-full-script/">the Senate shot it down</a>. </p>
<p>Richard Nixon decided to impound money authorized for programs simply because he disagreed with them. Nixon had vetoed the <a href="https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg816.pdf">Federal Water Pollution Control Act Amendments of 1972</a> but was overridden by Congress. He still <a href="https://www.nytimes.com/1973/10/07/archives/nixons-impounding-of-billions-in-federal-money-is-complicated-issue.html">withheld money</a>, which eventually <a href="https://supreme.justia.com/cases/federal/us/420/35/">culminated in a 1975 Supreme Court case</a>, in which the court <a href="https://law.jrank.org/pages/9356/Presidential-Powers-Power-Impoundment.html">ruled against Nixon</a>.</p>
<p>Other presidents tried to unduly influence more mundane aspects of life.</p>
<p>In August 1906, for example, Theodore Roosevelt <a href="https://www.history.com/news/theodore-roosevelt-spelling-controversy">issued an executive order</a> forcing the Government Printing Office to begin using the new spellings of 300 words – including “although” and “fixed” – in order to simplify them. </p>
<p>Following broad public criticism of this plan, <a href="https://childrenofthecode.org/code-history/roosevelt.htm">Congress voted </a>to reject these proposed spelling improvements in 1906.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo shows two men sitting in armchairs facing each other." src="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Richard Nixon speaks with journalist David Frost in 1977, three years after Nixon resigned.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/50426386/photo/frost-interviews-nixon.jpg?s=612x612&w=gi&k=20&c=ghRZcU4BWKy-fprsduiqPDQybzP0A86zbemPw8rP1os=">John Bryson/Getty Images</a></span>
</figcaption>
</figure>
<h2>Trump’s turn</h2>
<p>Trump’s actions and words throughout the presidency also suggest he believed that the office gave him overarching power.</p>
<p>For example, Trump reflected on his power over states to force them to reopen <a href="https://www.politico.com/states/california/story/2020/04/13/trump-claims-total-authority-over-state-decisions-1275506">during the COVID-19 crisis,</a> saying in April 2020, “When somebody’s president of the United States, the authority is total.” But governors actually maintained the control over what remained open or closed in their states during the pandemic. </p>
<p>Trump has also treated the independent judiciary as an inferior branch of government, subject to his control. </p>
<p>“If it’s my judges, you know how they’re gonna decide,” <a href="https://www.washingtonpost.com/politics/trump-to-congress-see-you-in-court/2019/04/26/9f114890-678d-11e9-82ba-fcfeff232e8f_story.html">Trump said</a> of his potential judicial appointees in 2016. </p>
<p>Chief Justice John Roberts rejected Trump’s view on this issue <a href="https://www.nbcnews.com/politics/supreme-court/rare-rebuke-chief-justice-roberts-slams-trump-comment-about-obama-n939016">in 2018, saying,</a> “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”</p>
<h2>It’s classified</h2>
<p>There is a rigorous procedure if presidents decide to declassify information. This <a href="https://www.archives.gov/isoo/policy-documents/cnsi-eo.html">complex process</a> involves all classified material being reviewed by appropriate government agencies and experts at the National Archives.</p>
<p>But Trump <a href="https://www.lawfareblog.com/can-trump-just-declare-nuclear-secrets-unclassified">claimed at one point</a> any documents he took home were already declassified. </p>
<p><a href="https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html%20%20https://www.msn.com/en-us/news/politics/donald-trump-tells-fox-news-host-i-can-declassify-docs-just-by-thinking-about-it/ar-AA1267nK">He later asserted</a>, “There doesn’t have to be a process, as I understand it. … You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.”</p>
<p>These comments help substantiate Trump’s belief in his absolute authority. There are <a href="https://www.brennancenter.org/our-work/research-reports/government-classification-and-mar-lago-documents">specific procedures</a> in place to <a href="https://www.archives.gov/isoo/policy-documents/cnsi-eo.html">manage declassification</a> that do not involve psychic powers.</p>
<h2>One real superpower</h2>
<p>If the American presidents have one superpower, it is the <a href="https://theconversation.com/pardon-me-an-ethicists-guide-to-what-is-proper-when-it-comes-to-presidential-pardons-151461">power of the pardon</a>. American presidents can pardon people, and the legislative and judiciary branches cannot prevent it. </p>
<p>Past presidents have used pardons largely in the service of justice, but at times to also reward personal friends or connections. But Trump took it even further, using this power seemingly as a way to <a href="https://www.cnbc.com/2020/12/22/-trump-pardons-15-including-people-convicted-in-mueller-probe-.html">reward his loyal supporters</a> – and <a href="https://www.cnn.com/2022/09/01/politics/january-6-pardons-trump-2024/index.html">says he will</a> seriously consider pardoning the Jan. 6, 2021, Capitol rioters if he is reelected. </p>
<p>Trump also apparently considered <a href="https://www.nytimes.com/2021/01/07/us/politics/trump-self-pardon.html">granting himself</a> a pardon as a way to avoid any prosecution for his involvement with the Capitol attack. </p>
<p>A self-pardon would also potentially place any president in constitutional murky water. </p>
<p>A <a href="https://supreme.justia.com/cases/federal/us/236/79/#89-90">1919 Supreme Court ruling</a> declared that a pardon “carries an imputation of guilt and acceptance of a confession of it.” So, if Trump had pardoned himself for anything, he would have admitted to having committed a crime – for which he could still potentially be impeached or investigated under any applicable state law, which is not covered by a presidential pardon.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People are seen in a large conference or other official looking room, looking at a large projecter screen that has details about government pardons and Jan. 6." src="https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Private communications about presidential pardons are shown during a hearing of the Jan. 6 committee in June 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1241485404/photo/house-january-6th-select-committee-holds-its-fifth-hearing.jpg?s=1024x1024&w=gi&k=20&c=eUF7kc7woKyBGwO0e5wzrqPZx-mtQd0OJHQQjsmkRCs=">Mandel Ngan-Pool/Getty Images</a></span>
</figcaption>
</figure>
<h2>After office</h2>
<p>Since leaving office, Trump has <a href="https://www.nytimes.com/2022/09/30/us/politics/trump-executive-privilege.html">attempted to claim</a> post-presidential executive privilege, independent of the current administration. But President Joe Biden – who must first give Trump this privilege – never extended it to his predecessor. </p>
<p>Trump’s defense that he was allowed to store classified documents at Mar-a-Lago as a result of executive privilege has <a href="https://www.politico.com/news/2022/12/01/appeals-court-tosses-trumps-lawsuit-over-mar-a-lago-search-00071743">largely been unsuccessful</a> in the courts. </p>
<p>Trump has also used his time as president to avoid any lawsuits that emerged after he left office. </p>
<p>In January 2023, a federal judge shot down Trump’s attempt to dismiss a 2022 defamation lawsuit filed by the writer E. Jean Carroll, who says Trump raped her in the 1990s. Trump denied the rape in 2019. </p>
<p>In court, <a href="https://www.reuters.com/legal/court-weighs-immunity-donald-trump-defamation-case-over-rape-claim-2023-01-10/">Trump argued that</a> anything he said as president should be protected and he should be given immunity during that period. </p>
<p>Though a ruling is still pending, Carroll <a href="https://www.theguardian.com/us-news/2023/jan/13/trumps-e-jean-carroll-lawsuit-absurd-ruling">has argued in court</a> that immunity would apply only if Trump were referring to presidential matters, and not personal ones. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white man with a blue suit walks past a row of American flags with the words 'Make America Great again' on a banner above the flags" src="https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump speaks at an event in his Mar-a-Lago home in November 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1441806213/photo/former-u-s-president-donald-trump-makes-an-announcement-at-his-florida-home.jpg?s=1024x1024&w=gi&k=20&c=aExQgUpOv8qb42hejd_g4ntovKv8zgjdvpCMU_ozkMs=">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Everyone is held to the same rules</h2>
<p>American presidents serve a limited amount of time governing before they return to the general population’s ranks. </p>
<p>Those privileged enough to hold the top office in the U.S. are still citizens. They are held to the same laws as everyone else and, the founders believed, should never be held above them. </p>
<p>Throughout history, many presidents have pushed the boundaries of power for their own personal preferences or political gain. However, Americans do have the right to push back and hold these leaders accountable to the country’s laws.</p>
<p>Presidents have never been monarchs. If they ever act in that manner, I believe that the people have to remind them of who they are and whom they serve.</p><img src="https://counter.theconversation.com/content/196451/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shannon Bow O'Brien does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump’s indictment will force Americans to grapple with the exact role of presidents – and limits of their power.Shannon Bow O'Brien, Associate Professor of Instruction, The University of Texas at AustinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2004122023-02-27T13:24:45Z2023-02-27T13:24:45ZHow Jimmy Carter integrated his evangelical Christian faith into his political work, despite mockery and misunderstanding<figure><img src="https://images.theconversation.com/files/512065/original/file-20230223-28-k80qo3.jpg?ixlib=rb-1.1.0&rect=32%2C24%2C5406%2C3612&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Jimmy Carter has decided to spend his remaining time at home with his family and receive hospice care.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/JimmyCarterHospiceExplainer/3f1f640bf1fd4ec38d84c98340fdb6f1/photo?Query=jimmy%20carter%202023&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=29&currentItemNo=18">AP Photo/John Bazemore, File</a></span></figcaption></figure><p>“I am a farmer, an engineer, a businessman, a planner, a scientist, a governor, and a Christian,” Jimmy Carter said while introducing himself to national political reporters when <a href="http://www.4president.org/speeches/carter1976announcement.htm">he announced his campaign to be the 39th president</a> of the United States in December 1974.</p>
<p>As journalists and historians consider Carter’s legacy, this prelude to Carter’s campaign offers insight into how he wanted to be known and how he might like to be remembered.</p>
<p>After studying Carter’s presidential campaign, presidency and post-presidency for years, which included examining more than 25,000 archival documents, media sources, oral histories and interviews, I wrote “<a href="https://lsupress.org/books/detail/jimmy-carter-marathon-media/">Jimmy Carter and the Birth of the Marathon Media Campaign</a>.” Along the way, I had the opportunity to interview former President Carter in October 2014, when we discussed his life, his presidency and his legacy. </p>
<p>Based upon this experience, one observation is certain – Carter was a man of faith committed to a vision of the nation that aligned with his views of Jesus’ teachings. </p>
<h2>A campaign cloaked in a message of love and justice</h2>
<p>In the fall of 1975, after his initial announcement failed to elicit much national attention for his candidacy, the still relatively unknown Georgia governor published the campaign biography, “<a href="https://www.uapress.com/product/why-not-the-best/">Why Not the Best?</a>”</p>
<p>Within the book, he told the story of his wholesome childhood on his family’s peanut farm in Archery, Georgia, and of achieving his childhood dream through his appointment to the Naval Academy in 1943. </p>
<p>He wrote of his dedication to his family as a loyal son, husband and father and his duty-bound career transition to manage his family-owned peanut farm, warehouse and store after his father <a href="https://www.washingtonpost.com/history/2023/02/20/jimmy-carter-nuclear-reactor-navy/">Earl Carter’s premature death</a> from pancreatic cancer in 1953. He also shared his lifelong commitment to community and public service. </p>
<p>Moreover, he offered himself as a public servant who could bridge the chasm between the American people and the government that had emerged after the revelations of presidential corruption amid Vietnam and Watergate. </p>
<p>“Our government can and must represent the best and the highest ideals of those of us who voluntarily submit to its authority. In our third century, we must meet these simple, but crucial standards,” he wrote in the <a href="https://www.uapress.com/product/why-not-the-best/">campaign biography</a>. </p>
<p>Though Carter cloaked his campaign in Jesus’ teachings about love and justice, most national reporters did not give Carter’s faith much attention until he became the Democratic Party’s front-runner in advance of the North Carolina primary in 1976.</p>
<h2>‘Lust in my heart’</h2>
<p>When national reporters finally turned their attention to his faith, what campaign director Hamilton Jordan referred to as Carter’s “<a href="https://books.google.com/books/about/Jimmy_Carter_in_Search_of_the_Great_Whit.html?id=YEGPAAAAIAAJ">weirdo factor</a>,” the <a href="https://books.google.com/books?id=gHNAAAAAIAAJ&pg=PA967&lpg=PA967&dq=jimmy+carter">evangelical politician acknowledged</a> that he had “spent more time on my knees in the four years I was governor … than I did in all the rest of my life.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512070/original/file-20230223-28-g60o0s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of people gather around a table, taking notes, as the person at the head of the table speaks." src="https://images.theconversation.com/files/512070/original/file-20230223-28-g60o0s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512070/original/file-20230223-28-g60o0s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=333&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512070/original/file-20230223-28-g60o0s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=333&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512070/original/file-20230223-28-g60o0s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=333&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512070/original/file-20230223-28-g60o0s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=419&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512070/original/file-20230223-28-g60o0s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=419&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512070/original/file-20230223-28-g60o0s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=419&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Jimmy Carter meets with news editors at the White House on April 15, 1977.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PresidentJimmyCarter/088bda28886f4ec894452646737ff8d7/photo?Query=jimmy%20carter%20press&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=2316&currentItemNo=37">AP Photo/Charles Bennett</a></span>
</figcaption>
</figure>
<p>Carter continued to share his understanding of the gospel with journalists and their audiences in a plain-spoken manner, even though it was not always advantageous to his political fortunes. For instance, after continued probes about his faith that summer from Playboy Magazine correspondent Robert Scheer, <a href="https://lsupress.org/books/detail/jimmy-carter-marathon-media/">Carter launched into a sermon on pride, lust and lying</a> that would haunt him later. </p>
<p>“I try not to commit a deliberate sin. I recognize that I’m going to do it anyhow, because I’m human and I’m tempted … I’ve looked on a lot of women with lust,” Carter, believing he was off the record, said in attempting to clarify his religious views. “<a href="https://books.google.com/books/about/The_Playboy_Interview.html?id=EXNmAAAAMAAJ%22%22">I’ve committed adultery in my heart many times</a>.” </p>
<p>Carter referred to <a href="https://www.kingjamesbibleonline.org/Matthew-5-28/">Matthew 5:28</a>, the biblical passage in which Jesus shares this interpretation of the Seventh Commandment, with the words: “But I say unto you, That whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart.”</p>
<p>Uninterrupted, Carter continued his salty explanation of the verse: “Christ says don’t consider yourself better than someone else because one guy screws a whole bunch of women while the other guy is loyal to his wife.”</p>
<p>“We have heard Jesus’ words all our lives ever since we were 3, 4 years old, and we knew what it meant,” Carter later explained to me. “But, obviously, the general public, when I said, ‘lust in my heart,’ that was a top headline, it looked like I was – like I spent my time trying to seduce other women. Rosa(lynn) knew that wasn’t true.” </p>
<p>Though Carter’s comments were “<a href="https://lsupress.org/books/detail/jimmy-carter-marathon-media/">on solid theological ground</a>,” according to many people of faith, up-and-coming leaders of the religious right, such as televangelist Jerry Falwell, castigated Carter. And, in the end, <a href="https://books.google.com/books?id=UXuKo8zOdD0C&printsec=copyright#v=onepage&q&f=false">many folks agreed</a> with well-regarded columnist Mary McGrory – the interview “should have been an off-the-record conversation with God, not one taped by Playboy.”</p>
<h2>Crisis of confidence</h2>
<p>Despite the erosion of support among the emerging religious right after the Playboy gaffe, Carter remained steadfast in his commitment to his Christian values and a faith-inspired vision for the nation that advanced human rights at home and abroad. He called it a “<a href="https://www.jimmycarterlibrary.gov/assets/documents/speeches/inaugadd.phtml">new beginning</a>.” </p>
<p>Carter beseeched his American brethren to chart a new course during his inaugural address in January 1977: “Our commitment to human rights must be absolute, our laws fair, our natural beauty preserved; the powerful must not persecute the weak, and human dignity must be enhanced.” </p>
<p>Carter had achieved what Time magazine hailed as one of the most astonishing “<a href="http://content.time.com/time/covers/0,16641,19770103,00.html">political miracles</a>” in the nation’s history because of his rapid ascension from a virtual unknown politician to the presidency. But many citizens, suffering from an emerging <a href="https://www.americanrhetoric.com/speeches/jimmycartercrisisofconfidence.htm">crisis of confidence</a> in the American dream and faith in its institutions and leaders, had already begun to tune out Carter’s political sermons about the looming energy crisis, stagflation and international conflicts.</p>
<p>Moreover, in the coming years, they would become indignant toward the man who had condemned the corruption of his predecessors and promised to never tell a lie on the campaign trail, yet remained loyal to one of his oldest advisers, the Office of Management and Budget Director Bert Lance, who was <a href="https://www.nytimes.com/1977/08/11/archives/lancegate.html">accused of unethical banking practices</a>. </p>
<h2>Long-lasting commitment to public service</h2>
<p>In the end, Carter stood accused of failing to live up to his campaign promises from the vantage point of many American citizens amid domestic crises and foreign conflicts.</p>
<p>Amid news coverage of these events and his dwindling public support, Carter lost his reelection campaign, and his administration was hailed by many journalists, political insiders and average Americans alike as a “<a href="https://www.washingtonpost.com/archive/politics/1983/10/17/white-house-cooling-to-the-idea-of-running-against-mondale/4e7bdbe7-ef4c-4eae-8e6d-e5186507c0ff/">failed presidency</a>.” </p>
<p>Nevertheless, Carter remained committed to his religious convictions. “I have spoken many times of love, but love must be aggressively translated into simple justice,” he invoked his audience when he <a href="https://www.jimmycarterlibrary.gov/assets/documents/speeches/acceptance_speech.pdf">accepted the Democratic nomination</a> in July 1976. </p>
<p>For the remainder of his life, he attempted to model the translation of Jesus’ love into action through his life of public service. His post-presidential commitments involved <a href="https://www.cartercenter.org/">The Carter Center’s</a> initiatives of fighting disease and seeking international peace and his private efforts of building homes for <a href="https://www.habitat.org/volunteer/build-events/carter-work-project">Habitat for Humanity</a> and teaching <a href="https://jimmycarter.info/plan-your-visit/president-carters-teaching-schedule-marantha-baptist-church/">Sunday school</a>. </p>
<p>In the end, Carter will leave this world with <a href="https://www.cnn.com/2015/08/20/politics/jimmy-carter-iran-hostages/index.html">only one acknowledged regret</a>: “I wish I’d sent one more helicopter to get the hostages and we would have rescued them and I would have been re-elected,” he said referring to the April 1980 military rescue attempt of the 53 U.S. hostages <a href="https://prologue.blogs.archives.gov/2021/11/29/the-iran-hostage-crisis/">held by Iranian revolutionaries</a>. </p>
<p>In Carter’s final days, his words from his presidential <a href="https://www.jimmycarterlibrary.gov/assets/documents/speeches/farewell.phtml">farewell address</a>, which remain true today, are worth remembering:</p>
<p>“The battle for human rights – at home and abroad – is far from over. … If we are to serve as a beacon for human rights, we must continue to perfect here at home the rights and values which we espouse around the world: A decent education for our children, adequate medical care for all Americans, an end to discrimination against minorities and women, a job for all those able to work, and freedom from injustice and religious intolerance.”</p><img src="https://counter.theconversation.com/content/200412/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lori Amber Roessner does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A media scholar who studied Carter and interviewed him explains how he attempted to translate Jesus’ teachings into action through his life of public service.Lori Amber Roessner, Professor in the School of Journalism and Electronic Media, University of TennesseeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1978482023-01-19T13:37:53Z2023-01-19T13:37:53ZThe weaponization of the federal government has a long history<figure><img src="https://images.theconversation.com/files/505142/original/file-20230118-12-62f853.jpeg?ixlib=rb-1.1.0&rect=0%2C12%2C8647%2C5743&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Nixon urged the IRS to audit his perceived enemies; Donald Trump wanted to do the same.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/tax-form-1040-royalty-free-image/939798290?phrase=irs%20audit&adppopup=true">LPettet/ iStock / Getty Images Plus</a></span></figcaption></figure><p>Now that House Republicans have created a “<a href="https://www.nytimes.com/2023/01/10/us/politics/house-republican-committee-weaponization-government.html">Select Subcommittee on Weaponization of the Federal Government</a>,” let’s revisit a classic of that power-abusing genre, featuring its greatest star, Richard M. Nixon.</p>
<p>The subcommittee’s express purpose is investigating federal investigators for alleged “illegal or improper, unconstitutional, or unethical activities,” at which Nixon was an acknowledged master. I’ve been listening to Nixon abuse power on the <a href="https://millercenter.org/the-presidency/secret-white-house-tapes/about">secret White House tapes</a> for two decades with the <a href="https://www.virginia.edu/">University of Virginia</a>’s <a href="https://millercenter.org/">Miller Center</a>. I’ve written about his decisions to sabotage Vietnam peace talks to <a href="https://www.upress.virginia.edu/title/4886">damage the Democrats’ 1968 presidential campaign</a>, to time his withdrawal from Vietnam to <a href="https://www.upress.virginia.edu/title/4984">help his 1972 reelection campaign</a>, and to <a href="https://prde.upress.virginia.edu/conversations/4006699">spring former Teamsters president Jimmy Hoffa</a> from prison in return for the union’s political support.</p>
<p>This story is a forgotten sequel to the Watergate break-in. No one has ever <a href="https://www.politifact.com/factchecks/2020/may/21/facebook-posts/facebook-post-comparing-obama-allegations-watergat/">proved</a> that President Nixon ordered burglars to photograph documents and plant listening devices at the headquarters of the Democratic National Committee, known as the DNC. </p>
<p>But Nixon himself created proof that he abused his presidential authority to go after the DNC with the investigative powers of the Internal Revenue Service. He captured this high crime on tape less than two months after the Watergate burglars’ arrests.</p>
<h2>‘Can’t we investigate people?’</h2>
<p>“Are we looking over the financial contributors of the Democratic National Committee?” Nixon asked his chief of staff on Aug. 3, 1972. “Are we running their income tax returns? Or is the Justice Department checking to see whether or not there’s any antitrust suits? Do we have anything going on any of these things?”</p>
<p>“Not as far as I know,” said H.R. “Bob” Haldeman.</p>
<p>“We have all this power and we aren’t using it. Now, what the Christ is the matter?” Nixon asked. </p>
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<a href="https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits walking on a path toward the White House." src="https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Richard Nixon walks with his assistant H.R. Haldeman from the Executive Office Building to the White House for a Cabinet meeting in December 1969.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotWatergate/4f8c6c2b2fc54c96bcbd7d5502c7c9ad/photo?Query=Richard%20Nixon%20Haldeman&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=8&currentItemNo=1">AP photo/file</a></span>
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</figure>
<p>“We’ve got a guy who’s a pluperfect bastard. He’s a loyalist – he’s a fanatic loyalist – in the IRS,” said John D. Ehrlichman, whose title was assistant to the president for domestic affairs and whose job was <a href="https://www.nytimes.com/1974/03/02/archives/federal-grand-jury-indicts-7-nixon-aides-on-charges-of-conspiracy.html">henchman</a>. </p>
<p>“He’s with us, you mean?” Nixon asked.</p>
<p>“He’s our guy,” Ehrlichman said. “One Treasury secretary after another, starting with [David M.] Kennedy, [John B.] Connally, now [George P.] Shultz, has said, ‘Oh, Jesus, can’t you get this guy out of there? Can’t you just take him out? He’s making all kinds of trouble for us. He’s too partisan.’”</p>
<p>The president’s mood darkened. “Shultz is not long for this life, in my opinion, because he’s not being political enough,” Nixon said. “I don’t care how nice a guy is. I don’t care how good an economist he is. We can’t have this bullshit.” His frustration was growing. “Can’t we investigate people?” Nixon asked. “Is there anything we can do?”</p>
<p>“Yes,” Ehrlichman said.</p>
<p>“I would think that we could get some people with some guts in the second term, when we don’t care about repercussions,” Haldeman said.</p>
<p>Nixon wanted to do something immediately about the <a href="https://www.britannica.com/biography/Larry-OBrien">chairman of the Democratic National Committee, Larry O’Brien</a>. O'Brien directed John F. Kennedy’s victorious presidential campaign in 1960 and Lyndon B. Johnson’s in 1964. “If you could dirty up O’Brien now, I think it might be a lot better than to wait until later,” Nixon said. </p>
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<a href="https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits sitting at a table strewn with papers." src="https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Nixon, right, at a meeting with aide John D. Ehrlichman in 1972.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NIXONEHRLICHMAN/8b52814648e5da11af9f0014c2589dfb/photo?Query=Nixon%20Ehrlichman&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=16&currentItemNo=13">AP photo</a></span>
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<h2>Abuse of power</h2>
<p>Under pressure from the White House, the <a href="https://www.nytimes.com/1974/07/17/archives/former-irs-commissioners-affidavit-on-lawrence-o-brien-audit.html">IRS subjected O’Brien to an audit during the 1972 presidential campaign</a>. The audit found a “relatively small deficiency,” which O’Brien promptly paid. Treasury Secretary Shultz and IRS Commissioner Johnnie Walters told Ehrlichman there was nothing more they could do.</p>
<p>“I wanted them to turn up something and <a href="https://www.nytimes.com/1974/07/11/archives/irs-said-to-shift-plans-for-rebozo-inquiry-on-100000-testimony-by.html">send him to jail</a> before the election,” Ehrlichman later said. There are few purer expressions of authoritarianism than an attempt to jail the titular head of the opposition party during a campaign.</p>
<p>Shortly before Nixon resigned in 1974, the House Judiciary Committee cited his abuse of his power over the IRS in an <a href="https://www.nytimes.com/1974/08/04/archives/the-committees-accusations-article-article-article.html">article of impeachment</a>.</p>
<h2>Chief of staff: Trump requested audits</h2>
<p>In 1998, Congress made it a felony for a president to “<a href="https://www.law.cornell.edu/uscode/text/26/7217">request, directly or indirectly</a>,” an IRS audit or investigation.</p>
<p>None of that stopped President Donald Trump from requesting IRS audits, according to his own former White House chief of staff, John Kelly. </p>
<p>“I would say, ‘It’s inappropriate, it’s illegal, it’s against their integrity, and the IRS knows what it’s doing, and it’s not a good idea,’” <a href="https://www.nytimes.com/2022/11/13/us/politics/trump-irs-investigations.html">Kelly told The New York Times</a> in November 2022. </p>
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<a href="https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits, one with a bright red tie, in an elegant room." src="https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=461&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=461&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=461&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=579&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=579&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=579&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">White House Chief of Staff John Kelly, right, says that President Donald Trump wanted the IRS to conduct audits on people Trump had publicly attacked.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpJohnKelly/494095061494422ab38b47ea714cf6d7/photo?Query=John%20Kelly%20Donald%20Trump&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=627&currentItemNo=10">AP Photo/Pablo Martinez Monsivais</a></span>
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<p>Trump said the IRS should investigate two former FBI officials, Director James Comey and Deputy Director Andrew McCabe, Kelly said. Trump has <a href="https://www.washingtonpost.com/politics/2019/05/23/trump-not-understanding-treason-names-people-he-thinks-committed-capital-crime/">publicly, and baselessly</a>, accused Comey and McCabe of treason, a capital crime.</p>
<p>After Kelly left the White House, both Comey and McCabe were subjected to unusually intense IRS audits, the kind tax lawyers refer to as “an <a href="https://www.nytimes.com/2022/07/06/us/politics/comey-mccabe-irs-audits.html">autopsy without the benefit of death</a>,” New York Times reporter Michael S. Schmidt wrote. Through a spokeswoman, Trump denied any knowledge of the audits. A Trump spokeswoman also denied Kelly’s account.</p>
<p>If Kelly told the truth, then Donald Trump managed to weaponize the IRS more effectively than Richard Nixon. That’s a sentence that I, as the author of <a href="https://www.upress.virginia.edu/title/4886">two</a> <a href="https://www.upress.virginia.edu/title/4984">books</a> on Nixon’s worst abuses of power, found difficult to type. </p>
<p>Kelly has made exactly the kind of credible allegation that a “Select Subcommittee on Weaponization of the Federal Government” worthy of the name would investigate. Yet none of the Republicans who spoke before their <a href="https://www.nytimes.com/2023/01/10/us/politics/house-republican-committee-weaponization-government.html">party-line vote</a> to establish the subcommittee expressed any interest in investigating government weaponization by politicians of their own party. </p>
<p>Congress has the power, even the obligation, to unearth and eliminate government weaponization. But if the subcommittee abuses its power for partisan ends, it will merely be an example of the problem it’s supposed to solve.</p><img src="https://counter.theconversation.com/content/197848/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ken Hughes is a research specialist with the Presidential Recordings Program of the University of Virginia's Miller Center, whose work is funded in part by grants from the National Historical Publications and Records Commission.</span></em></p>The House GOP is scrutinizing federal investigators for alleged abuses of power. But will they probe abuses that may have been committed by members of their own party?Ken Hughes, Research Specialist, the Miller Center, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1977732023-01-13T13:33:15Z2023-01-13T13:33:15ZSpecial counsels, like those examining Biden’s and Trump’s handling of classified documents, are intended to be independent – but they aren’t entirely<p>Attorney General <a href="https://www.justice.gov/ag/staff-profile/meet-attorney-general">Merrick Garland</a> has now appointed two veteran prosecutors as special counsels to oversee investigations into how President Joe Biden and former President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/donald-j-trump/">Donald Trump</a> handled classified documents after leaving office – <a href="https://www.nytimes.com/live/2023/01/12/us/biden-classified-documents">Biden after he ended his terms as vice president</a> in 2017, and <a href="https://www.nytimes.com/2022/11/18/us/politics/jack-smith-special-counsel-trump.html">Trump after leaving the Oval Office</a> in 2021. </p>
<p><a href="https://www.cnn.com/2023/01/12/politics/who-is-robert-hur-special-counsel/index.html">Robert Hur</a>, a former federal prosecutor in Maryland, will investigate whether Biden or any of his staff or associates mishandled classified information. <a href="https://www.nytimes.com/2022/11/18/us/politics/jack-smith-special-counsel-trump.html">Jack Smith</a>, a longtime top investigator in the Department of Justice, is overseeing <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">two criminal investigations</a> into former President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/donald-j-trump/">Donald Trump</a>.</p>
<p>Garland’s goal, in both cases, is to shield the probes from the appearance of partisanship.</p>
<p>But in <a href="https://truthsocial.com/@realDonaldTrump/posts/109406714029467005">immediate</a> and <a href="https://truthsocial.com/@realDonaldTrump/posts/109418948251497568">repeated</a> attacks, <a href="https://www.youtube.com/watch?v=nuWwzsROQSU">Trump</a>, and some of his <a href="https://truthsocial.com/@RepMTG/posts/109427543912303347">allies</a>, alleged <a href="https://truthsocial.com/@realDonaldTrump/posts/109423468870178087">political bias</a> anyway. For instance, in one highly charged social media post, the former president argued that he won’t “<a href="https://truthsocial.com/@realDonaldTrump/posts/109423251440782165">get a fair shake</a>” from Smith.</p>
<p>Biden, for his part, has said he is “<a href="https://www.nytimes.com/live/2023/01/12/us/biden-classified-documents#biden-said-he-was-cooperating-fully-and-completely-with-a-justice-department-review">cooperating fully and completely</a>” with the Justice Department’s inquiries.</p>
<p>Fairness and justice, though, are what Garland appointed Smith and Hur to deliver. In his announcement that Smith would take charge of the Department of Justice investigations into Trump’s role in the <a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Jan. 6 insurrection</a> and Trump’s <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">handling of classified government documents</a>, Garland described Smith <a href="https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-appointment-special-counsel">as someone who</a> “has built a reputation as an impartial and determined prosecutor.”</p>
<p>When appointing Hur, Garland emphasized his “<a href="https://www.justice.gov/opa/pr/appointment-special-counsel-1">department’s commitment to both independence and accountability</a> in particularly sensitive matters and to making decisions indisputably guided only by the facts and the law.”</p>
<p>In his own statement, Smith, <a href="https://www.npr.org/2022/11/18/1137847204/who-is-doj-special-counsel-jack-smith">who most recently</a> investigated and prosecuted war crimes at <a href="https://www.icc-cpi.int/about/the-court">the International Criminal Court</a> in <a href="https://www.denhaag.nl/en/in-the-city/introducing-the-hague/a-short-history-of-the-hague.htm">The Hague</a>, <a href="https://www.justice.gov/opa/pr/statement-special-counsel-jack-smith">promised to</a> “independently … move the investigations forward … to whatever outcome the facts and the law dictate.”</p>
<p>From my perspective as <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">a political scientist</a> who studies presidential systems, I believe that while special counsels are intended to be independent, in practice they are aren’t entirely. Here’s why.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with dark hair and a salt-and-pepper beard, sitting behind a large table or desk." src="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Special Counsel Jack Smith, examining Trump’s actions.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NetherlandsKosovoWarCrimes/0b477946e8f641f5b2b7521cafd05cb4/photo?Query=Jack%20Smith%20DeJong&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=3&currentItemNo=2">AP Photo/Peter Dejong, Pool</a></span>
</figcaption>
</figure>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit stands outside." src="https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=542&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=542&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=542&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Special Counsel Robert Hur, examining Biden’s actions.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BidenClassifiedDocuments/28021b9a199041d2b64cd83a941dd593/photo">AP Photo/Steve Ruark</a></span>
</figcaption>
</figure>
<h2>Independent and special counsels</h2>
<p>Ensuring impartiality in the Department of Justice can be difficult, as the attorney general is <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">appointed by</a> – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general, who head the department, to pursue a political agenda. President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">Richard Nixon</a> did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts. </p>
<p>On the evening of <a href="https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre">Oct. 20, 1973</a>, Nixon ordered Attorney General <a href="https://www.justice.gov/ag/bio/richardson-elliot-lee">Elliot Richardson</a> to fire <a href="https://www.justice.gov/osg/bio/archibald-cox">Archibald Cox</a>, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General <a href="https://www.npr.org/2019/11/27/783492672/william-ruckelshaus-who-defied-nixon-in-saturday-night-massacre-has-died-at-87">William Ruckelshaus</a> to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General <a href="https://www.justice.gov/osg/bio/robert-h-bork">Robert Bork</a>, the next most senior official at the Department of Justice, to fire Cox. Bork complied. </p>
<p>This shocking series of events, often referred to as the <a href="https://www.youtube.com/watch?v=LZuthKhjAfk">Saturday Night Massacre</a>, demonstrated how presidents could exercise political power over criminal investigations.</p>
<p>As a result of the Watergate scandal, Congress passed the <a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">Ethics in Government Act of 1978</a>. This allowed for investigations into misconduct that could operate outside of presidential control.</p>
<p>After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other <a href="https://www.law.cornell.edu/uscode/text/28/591">high-ranking executive branch officials</a> had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate. </p>
<p>The Ethics in Government Act also disqualified Department of Justice employees, including the attorney general, from participating in any investigation or prosecution that could “<a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">result in a personal, financial, or political conflict of interest</a>, or the appearance thereof.”</p>
<p>In the decades since the law’s passage, independent counsels investigated <a href="https://www.hsdl.org/c/abstract/?docid=814877">Republicans</a> and <a href="https://www.govinfo.gov/content/pkg/CDOC-105hdoc310/pdf/CDOC-105hdoc310.pdf">Democrats</a> alike. In 1999, <a href="https://www.cnn.com/ALLPOLITICS/stories/1999/03/01/independent.counsel/">Congress</a> let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel063099.htm">authorized</a> the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated. </p>
<p>Robert Mueller, who was appointed in <a href="https://www.justice.gov/opa/pr/appointment-special-counsel">2017</a> by Deputy Attorney General Rod Rosenstein to investigate <a href="https://theconversation.com/russian-interventions-in-other-peoples-elections-a-brief-history-74406">possible Russian interference in the 2016 elections</a> and <a href="https://theconversation.com/fbis-russia-probe-threatens-a-reckoning-for-team-trump-75002">possible links between the Trump campaign and the Russian government</a>, was a special counsel. Some Republicans accused him of <a href="https://www.bbc.com/news/world-us-canada-42372603">bias</a>, despite his long career serving under <a href="https://www.npr.org/2018/02/01/582358540/muellers-reputation-in-washington-is-stunningly-bipartisan-journalist-says">both Democratic and Republican presidents</a>.</p>
<p>In <a href="https://www.justice.gov/sco-durham">2020</a>, John Durham – another <a href="https://www.nbcconnecticut.com/news/local/u-s-attorney-for-connecticut-john-durham-resigns/2432294/">veteran</a> of the Department of Justice – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of <a href="https://www.npr.org/2022/02/15/1080841516/john-durham-sussmann-trump-russia-investigation">political prosecution</a>. Sussmann was later <a href="https://www.nytimes.com/2022/05/31/us/politics/michael-sussmann-durham-fbi.html">acquitted</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1597377821353332736"}"></div></p>
<h2>Politicizing the process</h2>
<p>Although special counsels were meant to resemble independent counsels, there are notable differences.</p>
<p><a href="https://sgp.fas.org/crs/misc/R43112.pdf">For instance</a>, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the <a href="https://www.supremecourt.gov/about/about.aspx">chief justice of the United States</a>.</p>
<p>Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Department of Justice regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or <a href="https://www.politico.com/story/2017/06/13/can-trump-fire-special-counsel-robert-mueller-239500">end</a> a special counsel investigation. </p>
<p>For example, at one point, Trump <a href="https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html">wanted to fire Mueller</a>. After his attorney general, <a href="https://www.washingtonpost.com/politics/2020/03/04/an-emboldened-trump-says-quiet-part-out-loud-about-why-he-fired-jeff-sessions/">Jeff Sessions</a>, who had recused himself from the Russia probe, did not “<a href="https://twitter.com/realDonaldTrump/status/1235181043881299969">end the phony Russia Witch Hunt</a>,” Trump fired him.</p>
<p>Seemingly supportive of this, <a href="https://www.justice.gov/ag/bio/barr-william-pelham">William Barr</a>, who had served as attorney general under President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/george-w-bush/">George W. Bush</a>, sent an unsolicited memo to the Department of Justice defending Trump by arguing that presidents have “<a href="https://www.wsj.com/public/resources/documents/BarrMueller.pdf">complete authority to start or stop a law enforcement proceeding</a>.” </p>
<p><a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">Unsurprisingly</a>, Trump then <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">chose</a> Barr to replace <a href="https://theconversation.com/3-things-jeff-sessions-did-as-attorney-general-that-history-should-remember-106614">Sessions</a> as attorney general.</p>
<p><a href="https://doi.org/10.1371/journal.pone.0234938">In my own research</a>, <a href="https://doi.org/10.1016/j.soscij.2019.04.006">I have found</a> that abuses of power are more common in situations in which the president and the attorney general are political allies.</p>
<p>For instance, after Mueller finished his <a href="https://www.washingtonpost.com/graphics/2019/politics/read-the-mueller-report/?itid=lk_inline_manual_21">report</a> in 2019, Barr released a <a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/?noteId=9048a12b-2332-4645-a1be-d645db216eb5&questionId=218b8095-c5e3-4eab-9135-4170f5b3e87f">summary</a> of its “principal conclusions.” Later, Barr’s summary was criticized for “<a href="https://www.washingtonpost.com/context/special-counsel-mueller-s-letter-to-attorney-general-barr/e32695eb-c379-4696-845a-1b45ad32fff1/">not fully captur[ing] the context, nature, and substance</a>” of Mueller’s work.</p>
<p>In 2020, a Republican-appointed judge <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/bd363044-e2ec-4a02-b0b3-43fbc48b2f49/note/f003c01c-cde9-4c1e-a926-bc74e461ca7f.pdf">ruled</a> that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”</p>
<h2>To be or not to be free of partisanship</h2>
<p>The independence of the Department of Justice rests, in part, on who occupies the offices of president and attorney general.</p>
<p>Trump, for example, <a href="https://www.washingtonpost.com/politics/post-impeachment-trump-declares-himself-the-chief-law-enforcement-officer-of-america/2020/02/18/b8ff49c0-5290-11ea-b119-4faabac6674f_story.html">saw himself</a> as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.” </p>
<p>Meanwhile, <a href="https://www.whitehouse.gov/administration/president-biden/">Biden</a> has <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3093&context=nclr">a long history</a> of supporting the independence of Department of Justice investigations, dating as far back as his <a href="https://www.judiciary.senate.gov/about/chairman/previous">1987-1995 tenure as chairman of the Senate Judiciary Committee</a>.</p>
<p>Barr once <a href="https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-yates/2017/02/01/5981d890-e809-11e6-80c2-30e57e57e05d_story.html">argued</a> that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.” </p>
<p>In contrast, Garland – a former U.S. circuit judge – <a href="https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland">insists</a> that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”</p>
<p>Given that <a href="https://www.youtube.com/watch?v=9TeYOZWGu8s">Trump</a> and <a href="https://www.nbcnews.com/politics/joe-biden/biden-cranks-courtship-top-donors-ahead-2024-presidential-election-rcna59029">Biden</a> may end up facing off in <a href="https://www.newyorker.com/news/letter-from-bidens-washington/are-we-doomed-to-see-a-biden-trump-rematch-in-2024">2024</a>, it makes sense that Garland would want to appoint special counsels in order to avoid directly overseeing investigations into his boss and into a political opponent of his boss.</p>
<p>Still, Smith and Hur will not be entirely independent of Garland, just as Garland <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">is not entirely independent</a> of Biden.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/special-counsels-like-the-one-leading-the-department-of-justices-investigation-of-trump-are-intended-to-be-independent-but-they-arent-entirely-195640">article</a> originally published Dec. 14, 2022.</em></p><img src="https://counter.theconversation.com/content/197773/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special counsels can help administrations avoid the perception of bias, but politics is never fully out of the picture.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1959992022-12-23T13:12:55Z2022-12-23T13:12:55ZJan. 6 committee tackled unprecedented attack with time-tested inquiry<figure><img src="https://images.theconversation.com/files/502472/original/file-20221221-20-vyealk.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C5015%2C3331&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Dec. 19, 2022 meeting of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol, in Washington, DC. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-image-is-displayed-on-a-screen-during-a-meeting-of-the-news-photo/1245732523?phrase=House%20January%206%20committee&adppopup=true">Getty Images</a></span></figcaption></figure><p>After 18 months, more than 1,200 interviews and <a href="https://www.axios.com/2022/12/20/jan-6-committees-unanswered-questions">10 public hearings that presented 70 witnesses’ testimony</a>, the House Select Committee to Investigate the January 6 Attack <a href="https://int.nyt.com/data/documenttools/january-6-committee-final-report/2095325cbebd8378/full.pdf">released its 845-page final report</a> late on Dec. 22, 2022. The report recommended that the Department of Justice prosecute former President Donald Trump on four criminal charges, including conspiracy and incitement of insurrection. It also contained several legislative recommendations, including <a href="https://www.npr.org/2022/12/22/1139951463/electoral-count-act-reform-passes">reform of the process</a> to count electoral votes in presidential elections. The committee also notably recommended that Congress bar Trump and other officials involved in the insurrection from running for office again under the 14th amendment.</p>
<p>The committee’s recommendation to prosecute a former president was unprecedented. But its investigation of the events of Jan. 6, 2021 fell squarely within Congress’ power, and added a new chapter to a centuries-long history of congressional investigations into government scandals and failures.</p>
<h2>Regular oversight</h2>
<p>Congress has broad investigative powers. Its standing and special committees, known as select committees, regularly conduct <a href="https://theconversation.com/jan-6-hearings-are-only-the-tip-of-the-iceberg-when-it-comes-to-important-congressional-oversight-hearings-185369">both preemptive oversight and retroactive investigations</a>. Their aim: to identify specific cases of wrongdoing both inside and outside government. </p>
<p>Committee investigative reports, released at the end of focused probes, often serve as valuable historical documents. They provide detailed chronicles of the events that motivated the inquiries. For instance, <a href="https://www.congress.gov/114/crpt/hrpt848/CRPT-114hrpt848.pdf">the final report released by the House Select Committee on Benghazi</a> offered a minute-by-minute accounting of events leading to the deadly terrorist attacks on the American consulate in Benghazi, Libya, on the night of Sept. 11, 2012. </p>
<p>The reports typically reiterate the questions that prompted the investigation, explain how the committee conducted its work and delineate the relevant evidence and progression of events. Finally, a report will provide provides recommendations for fixing the problems the inquiry uncovered. </p>
<p>These recommendations may be classified into three distinct types: legal, legislative and institutional. Of the 11 distinct recommendations the Jan. 6th committee offered in its final report, one was a legal recommendation focused on accountability, nine proposed new policies and actions, and one proposed increased oversight in Congress itself. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An antique-looking newspaper clipping about a Senate committee's attempt to get witnesses to testify in 1860." src="https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=585&fit=crop&dpr=1 600w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=585&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=585&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=735&fit=crop&dpr=1 754w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=735&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=735&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A brief New York Times story from Jan. 26, 1860, about witnesses summoned to testify at a Senate committee investigation of John Brown and fellow abolitionists’ raid on a government arsenal at Harpers Ferry, in what is now W.Va.</span>
<span class="attribution"><a class="source" href="https://timesmachine.nytimes.com/timesmachine/1860/01/26/88149088.html?pageNumber=2">New York Times archive screenshot</a></span>
</figcaption>
</figure>
<h2>Legal referrals</h2>
<p>Committees can recommend legal action, such as civil or criminal prosecutions, or both. But Congress cannot itself levy civil or criminal charges against the subjects of investigations. </p>
<p>Instead, committees may recommend that the Department of Justice consider indictments based on the evidence presented in the final committee reports. Federal prosecutors often conduct their own parallel investigations during the same time frame as congressional inquiries but take Congress’ evidence and referrals seriously. The <a href="https://www.nytimes.com/live/2022/12/19/us/jan-6-committee-trump">Jan. 6th committee’s vote on Dec. 19, 2022</a> was the first time Congress has referred a former president for criminal prosecution.</p>
<p>In the 1920s, during its investigation of <a href="https://www.levin-center.org/thomas-walsh-and-the-teapot-dome-investigation/">the Teapot Dome bribery scandal</a>, the Senate Public Lands Committee <a href="http://academic.brooklyn.cuny.edu/history/johnson/teapotdome.htm">found evidence of corruption by, among others</a>, Interior Secretary Albert Fall. Committee Chairman Thomas Walsh recommended that Fall be <a href="https://www.nytimes.com/1924/02/10/archives/walsh-arraigns-teapot-dome-looters.html">prosecuted for “contemptuous disregard of the law.”</a> <a href="https://www.levin-center.org/thomas-walsh-and-the-teapot-dome-investigation/">Fall was also investigated by special counsels</a> appointed by President Calvin Coolidge and was indicted and served prison time for bribery. </p>
<p>In the 1970s, <a href="https://www.levin-center.org/the-watergate-hearings/">Congress’ investigation</a> into the Nixon administration’s cover-up of the Watergate break-in led to <a href="https://www.cnn.com/2014/01/23/us/watergate-fast-facts/index.html">the conviction of three Nixon aides for obstruction of justice</a>. In the 1980s, the Senate’s Iran-Contra investigation, along with the independent Tower Commission’s report, into secret and unlawful arms sales to Iran by the Reagan administration <a href="https://www.brown.edu/Research/Understanding_the_Iran_Contra_Affair/prosecutions.php">led to the convictions of three Reagan administration advisers</a> for charges ranging from conspiracy to obstruction of Congress. </p>
<p>In highly political investigations, Congress may stop short of recommending specific criminal charges. But it can encourage federal prosecutors to review the committee’s findings over the course of their own investigations. </p>
<p>For instance, <a href="https://www.washingtonpost.com/wp-srv/politics/special/whitewater/timeline.htm">in 1994, Attorney General Janet Reno appointed an independent counsel</a> to investigate property investments in the Whitewater Development Corp. made by Bill and Hillary Clinton when they were governor and first lady of Arkansas. </p>
<p>A year later, the Senate established a special committee to conduct its own Whitewater inquiry. <a href="https://www.govinfo.gov/content/pkg/CRPT-104srpt280/pdf/CRPT-104srpt280.pdf">In the Republican majority’s final report</a>, the committee accused the Clinton administration of “highly improper conduct.” But it stopped short of recommending criminal indictments. </p>
<p>In a follow-up letter <a href="http://edition.cnn.com/ALLPOLITICS/1997/gen/resources/infocus/whitewater/repub.letter.html">to independent counsel Kenneth Starr</a>, the committee suggested that he “take whatever action you deem appropriate” after reviewing the committee’s evidence against three Clinton aides. <a href="https://archive.nytimes.com/www.nytimes.com/library/politics/070199hubbell-starr.html">Starr later indicted one of those aides for fraud</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Many circus clowns in a room watching a TV." src="https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Senate’s Watergate hearings, which began May 17, 1973, were watched by an estimated 3 out of 4 of the nation’s homes. Clowns on a break from Shrine Circus in Pittsburgh watched during their time off.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/between-the-acts-clowns-from-the-shrine-circus-take-time-to-news-photo/1169767644?phrase=watergate%20hearing&adppopup=true">Bettmann Archive/Getty Images</a></span>
</figcaption>
</figure>
<h2>Legislative recommendations</h2>
<p>Committee reports often include guides for policy reform in both the executive and legislative branches to address the failures that sparked the investigation. </p>
<p>Perhaps a committee’s most far-reaching set of legislative proposals came <a href="https://www.senate.gov/about/powers-procedures/investigations/church-committee.htm">after the Church Committee investigated</a> the CIA’s role in the assassination of foreign leaders and its potentially unconstitutional domestic surveillance. The committee in 1976 made 96 recommendations for reforming the U.S. intelligence community in <a href="https://www.aarclibrary.org/publib/contents/church/contents_church_reports_ir.htm">its final six-volume report</a>. </p>
<p>Two years after the report’s release, Congress followed through. It passed <a href="https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1286">the Foreign Intelligence Surveillance Act</a>, commonly known as “FISA.” The law required intelligence agencies to obtain warrants before conducting surveillance on American citizens. </p>
<p>In light of the committee’s revelations of the FBI’s spying on activists like Martin Luther King Jr. – <a href="https://kinginstitute.stanford.edu/encyclopedia/federal-bureau-investigation-fbi">approved by the long-standing agency director, J. Edgar Hoover</a> – Congress also established a single 10-year term for FBI directors. </p>
<p>And while Congress did not enact the Church Committee’s proposal to <a href="https://www.aarclibrary.org/publib/church/reports/ir/html/ChurchIR_0148a.htm">ban foreign assassinations</a>, <a href="https://www.britannica.com/event/Executive-Order-11905">President Gerald Ford did so</a> via executive order in 1976. This order was revised, yet <a href="https://irp.fas.org/crs/RS21037.pdf">upheld, by Presidents Carter, Reagan, Bush and Clinton</a>. But it was weakened by policies adopted for the U.S. war on terror beginning in 2001. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/fomOeIhEWDg?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">CIA Director William Colby is interrogated by Sen. Frank Church at a 1975 hearing of the Church Committee on intelligence operations. Colby exhibits a dart pistol that fires poisonous ammunition.</span></figcaption>
</figure>
<h2>Institutional modifications</h2>
<p>Committees can make suggestions for increasing the ease and effectiveness of future oversight, both inside and outside Congress. Such a move can be sold to fellow legislators as a nonpartisan imperative for checking executive power.</p>
<p>For example, after the conclusion of the Truman Committee’s World War II-era investigation in which it was charged with “<a href="https://www.hsgac.senate.gov/imo/media/doc/PSI%20Historical%20Background%20-%20Updated%20to%20116th%20Congress.pdf">exposing waste, fraud, and abuse in the war effort and war profiteering</a>,” Congress made the committee permanent, establishing the Senate Permanent Subcommittee on Investigations. That subcommittee currently has the broadest investigative jurisdiction of any Senate committee, with the power to investigate all government agencies as well as all “<a href="https://www.hsgac.senate.gov/imo/media/doc/PSI%20Historical%20Background%20-%20Updated%20to%20116th%20Congress.pdf">aspects of crime and lawlessness within the United States which … affect the national health, welfare, and safety</a>.”</p>
<p>And in response to the Church Committee’s suggestion in 1976, Congress established Permanent Select Committees on Intelligence <a href="https://catalog.archives.gov/id/10535577">in the House</a> <a href="https://www.intelligence.senate.gov/about">and Senate</a>. Both have access to classified information and oversight of the U.S. intelligence community, including the CIA and the National Security Agency. </p>
<p>Congress can also pass laws to facilitate or strengthen oversight within government agencies themselves. For instance, <a href="https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg1101.pdf">the Inspector General Act of 1978</a> established centralized, independent oversight offices in major government agencies. It <a href="https://crsreports.congress.gov/product/pdf/R/R45450">was inspired by</a> a <a href="https://www.ojp.gov/pdffiles1/Digitization/63790NCJRS.pdf">House committee’s final report</a> on waste and mismanagement in the Department of Health, Education and Welfare. </p>
<h2>Political effects</h2>
<p>Committee reports may also have important political consequences, though those effects are not necessarily planned or anticipated. </p>
<p>During its 2014-2016 investigation, for instance, the <a href="https://www.congress.gov/committee/house-select-committee-on-the-events-surrounding-the-2012-terrorist-attack-in-benghazi/hlzi00">House Benghazi committee</a> discovered that Hillary Clinton had improperly used a private email server when she was secretary of state.</p>
<p><a href="https://www.nytimes.com/2016/06/29/us/politics/hillary-clinton-benghazi.html">The committee did not recommend criminal charges against Clinton</a>. But it condemned the State Department for delays in turning over Clinton’s emails to the committee <a href="https://www.congress.gov/114/crpt/hrpt848/CRPT-114hrpt848.pdf">and argued that</a> “[T]he manner in which those records were housed during and after her tenure … makes it impossible to ever represent to the families of those killed in Benghazi that the record is whole.” </p>
<p>The email controversy would dog Clinton in her 2016 campaign for the presidency. The decision by FBI Director James Comey, in October 2016, <a href="https://vault.fbi.gov/director-comey-letter-to-congress-dated-october-28-2016/Director%20Comey%20Letter%20to%20Congress%20Dated%20October%2028%2C%202016%20Part%2001%20of%2001/view">to inform Congress of new information</a> regarding Clinton’s emails <a href="https://fivethirtyeight.com/features/the-comey-letter-probably-cost-clinton-the-election/">may have contributed to her loss to Donald Trump in November 2016</a>.</p><img src="https://counter.theconversation.com/content/195999/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy. </span></em></p>The House Jan. 6 committee’s final report is the latest in a long series of congressional studies that have tried to answer hard questions about government failures and suggest ways to avoid them.Claire Leavitt, Assistant Professor of Government, Smith CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956402022-12-14T13:14:13Z2022-12-14T13:14:13ZSpecial counsels, like the one leading the Department of Justice’s investigation of Trump, are intended to be independent – but they aren’t entirely<figure><img src="https://images.theconversation.com/files/500554/original/file-20221212-1590-rbisur.jpeg?ixlib=rb-1.1.0&rect=15%2C7%2C5276%2C3498&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Merrick Garland, center, announcing on Nov. 18, 2022, that he will appoint a special counsel for the Department of Justice investigation into former President Donald Trump.
</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorney-general-merrick-garland-delivers-remarks-at-the-u-news-photo/1442590814?phrase=Jack%20Smith%20Merrick%20Garland&adppopup=true">Anna Moneymaker/Getty Images</a></span></figcaption></figure><p>When Attorney General <a href="https://www.justice.gov/ag/staff-profile/meet-attorney-general">Merrick Garland</a> appointed veteran prosecutor <a href="https://www.nytimes.com/2022/11/18/us/politics/jack-smith-special-counsel-trump.html">Jack Smith</a> as special counsel to oversee two criminal investigations into former President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/donald-j-trump/">Donald Trump</a> on <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">Nov. 18, 2022</a>, Garland’s goal was to shield the probes from the appearance of partisanship.</p>
<p>But in <a href="https://truthsocial.com/@realDonaldTrump/posts/109406714029467005">immediate</a> and <a href="https://truthsocial.com/@realDonaldTrump/posts/109418948251497568">repeated</a> attacks, <a href="https://www.youtube.com/watch?v=nuWwzsROQSU">Trump</a>, and some of his <a href="https://truthsocial.com/@RepMTG/posts/109427543912303347">allies</a>, alleged <a href="https://truthsocial.com/@realDonaldTrump/posts/109423468870178087">political bias</a> anyway. For instance, in one highly charged social media post, the former president argued that he won’t “<a href="https://truthsocial.com/@realDonaldTrump/posts/109423251440782165">get a fair shake from</a>” Smith.</p>
<p>Fairness and justice, though, are what Garland appointed Smith to deliver. In his announcement that Smith would take charge of the Department of Justice investigations into Trump’s role in the <a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Jan. 6 insurrection</a> and Trump’s <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">handling of classified government documents</a>, Garland described Smith <a href="https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-appointment-special-counsel">as someone who</a> “has built a reputation as an impartial and determined prosecutor.”</p>
<p>In his own statement, Smith, <a href="https://www.npr.org/2022/11/18/1137847204/who-is-doj-special-counsel-jack-smith">who most recently</a> investigated and prosecuted war crimes at <a href="https://www.icc-cpi.int/about/the-court">the International Criminal Court</a> in <a href="https://www.denhaag.nl/en/in-the-city/introducing-the-hague/a-short-history-of-the-hague.htm">The Hague</a>, <a href="https://www.justice.gov/opa/pr/statement-special-counsel-jack-smith">promised to</a> “independently … move the investigations forward … to whatever outcome the facts and the law dictate.”</p>
<p>From my perspective as <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">a political scientist</a> who studies presidential systems, I believe that while special counsels are intended to be independent – in practice, they are aren’t entirely. Here’s why.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with dark hair and a salt-and-pepper beard, sitting behind a large table or desk." src="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Newly appointed Special Counsel Jack Smith, when he was prosecutor at the Kosovo Specialist Chambers court in The Hague, Nov. 10, 2020.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NetherlandsKosovoWarCrimes/0b477946e8f641f5b2b7521cafd05cb4/photo?Query=Jack%20Smith%20DeJong&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=3&currentItemNo=2">AP Photo/Peter Dejong, Pool</a></span>
</figcaption>
</figure>
<h2>Independent and special counsels</h2>
<p>Ensuring impartiality in the Department of Justice can be difficult, as the attorney general is <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">appointed by</a> – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general, who head the department, to pursue a political agenda. President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">Richard Nixon</a> did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts. </p>
<p>On the evening of <a href="https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre">Oct. 20, 1973</a>, Nixon ordered Attorney General <a href="https://www.justice.gov/ag/bio/richardson-elliot-lee">Elliot Richardson</a> to fire <a href="https://www.justice.gov/osg/bio/archibald-cox">Archibald Cox</a>, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General <a href="https://www.npr.org/2019/11/27/783492672/william-ruckelshaus-who-defied-nixon-in-saturday-night-massacre-has-died-at-87">William Ruckelshaus</a> to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General <a href="https://www.justice.gov/osg/bio/robert-h-bork">Robert Bork</a>, the next most senior official at the Department of Justice, to fire Cox. Bork complied. </p>
<p>This shocking series of events, often referred to as the <a href="https://www.youtube.com/watch?v=LZuthKhjAfk">Saturday Night Massacre</a>, demonstrated how presidents could exercise political power over criminal investigations.</p>
<p>As a result of the Watergate scandal, Congress passed the <a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">Ethics in Government Act of 1978</a>. This allowed for investigations into misconduct that could operate outside of presidential control.</p>
<p>After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other <a href="https://www.law.cornell.edu/uscode/text/28/591">high-ranking executive branch officials</a> had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, which would investigate. </p>
<p>The Ethics in Government Act also disqualified Department of Justice employees, including the attorney general, from participating in any investigation or prosecution that could “<a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">result in a personal, financial, or political conflict of interest, or the appearance thereof</a>.”</p>
<p>In the decades since the law’s passage, independent counsels investigated <a href="https://www.hsdl.org/c/abstract/?docid=814877">Republicans</a> and <a href="https://www.govinfo.gov/content/pkg/CDOC-105hdoc310/pdf/CDOC-105hdoc310.pdf">Democrats</a> alike. In 1999, <a href="https://www.cnn.com/ALLPOLITICS/stories/1999/03/01/independent.counsel/">Congress</a> let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel063099.htm">authorized</a> the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated. </p>
<p>Robert Mueller, who was appointed in <a href="https://www.justice.gov/opa/pr/appointment-special-counsel">2017</a> by Deputy Attorney General Rod Rosenstein to investigate <a href="https://theconversation.com/russian-interventions-in-other-peoples-elections-a-brief-history-74406">possible Russian interference in the 2016 elections</a> and <a href="https://theconversation.com/fbis-russia-probe-threatens-a-reckoning-for-team-trump-75002">possible links between the Trump campaign and the Russian government</a>, was a special counsel. Some Republicans accused him of <a href="https://www.bbc.com/news/world-us-canada-42372603">bias</a>, despite his long career serving under <a href="https://www.npr.org/2018/02/01/582358540/muellers-reputation-in-washington-is-stunningly-bipartisan-journalist-says">both Democratic and Republican presidents</a>.</p>
<p>In <a href="https://www.justice.gov/sco-durham">2020</a>, John Durham – another <a href="https://www.nbcconnecticut.com/news/local/u-s-attorney-for-connecticut-john-durham-resigns/2432294/">veteran</a> of the Department of Justice – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of <a href="https://www.npr.org/2022/02/15/1080841516/john-durham-sussmann-trump-russia-investigation">political prosecution</a>. Sussmann was later <a href="https://www.nytimes.com/2022/05/31/us/politics/michael-sussmann-durham-fbi.html">acquitted</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1597377821353332736"}"></div></p>
<h2>Politicizing the process</h2>
<p>Although special counsels were meant to resemble independent counsels, there are notable differences.</p>
<p><a href="https://sgp.fas.org/crs/misc/R43112.pdf">For instance</a>, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the <a href="https://www.supremecourt.gov/about/about.aspx">chief justice of the United States</a>.</p>
<p>Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Department of Justice regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or <a href="https://www.politico.com/story/2017/06/13/can-trump-fire-special-counsel-robert-mueller-239500">end</a> a special counsel investigation. </p>
<p>For example, at one point, Trump <a href="https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html">wanted to fire Mueller</a>. After his attorney general, <a href="https://www.washingtonpost.com/politics/2020/03/04/an-emboldened-trump-says-quiet-part-out-loud-about-why-he-fired-jeff-sessions/">Jeff Sessions</a>, who had recused himself from the Russia probe, did not “<a href="https://twitter.com/realDonaldTrump/status/1235181043881299969">end the phony Russia Witch Hunt</a>,” Trump fired him.</p>
<p>Seemingly supportive of this, <a href="https://www.justice.gov/ag/bio/barr-william-pelham">William Barr</a>, who had served as attorney general under President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/george-w-bush/">George W. Bush</a>, sent an unsolicited memo to the Department of Justice defending Trump by arguing that presidents have “<a href="https://www.wsj.com/public/resources/documents/BarrMueller.pdf">complete authority to start or stop a law enforcement proceeding</a>.” </p>
<p><a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">Unsurprisingly</a>, Trump then <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">chose</a> Barr to replace <a href="https://theconversation.com/3-things-jeff-sessions-did-as-attorney-general-that-history-should-remember-106614">Sessions</a> as attorney general.</p>
<p><a href="https://doi.org/10.1371/journal.pone.0234938">In my own research</a>, <a href="https://doi.org/10.1016/j.soscij.2019.04.006">I have found</a> that abuses of power are more common in situations in which the president and the attorney general are political allies.</p>
<p>For instance, after Mueller finished his <a href="https://www.washingtonpost.com/graphics/2019/politics/read-the-mueller-report/?itid=lk_inline_manual_21">report</a> in 2019, Barr released a <a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/?noteId=9048a12b-2332-4645-a1be-d645db216eb5&questionId=218b8095-c5e3-4eab-9135-4170f5b3e87f&utm_term=.83d1434abd9d">summary</a> of its “principal conclusions.” Later, Barr’s summary was <a href="https://yarmuth.house.gov/press/yarmuth-statement-ag-barrs-summary-principal-conclusions-mueller-report">criticized</a> for “<a href="https://www.washingtonpost.com/context/special-counsel-mueller-s-letter-to-attorney-general-barr/e32695eb-c379-4696-845a-1b45ad32fff1/?itid=lk_inline_manual_2">not fully captur[ing] the context, nature, and substance of</a>” Mueller’s work.</p>
<p>In 2020, a Republican-appointed judge <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/bd363044-e2ec-4a02-b0b3-43fbc48b2f49/note/f003c01c-cde9-4c1e-a926-bc74e461ca7f.pdf">ruled</a> that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”</p>
<h2>To be or not to be free of partisanship</h2>
<p>The independence of the Department of Justice rests, in part, on who occupies the offices of president and attorney general.</p>
<p>Trump, for example, <a href="https://www.washingtonpost.com/politics/post-impeachment-trump-declares-himself-the-chief-law-enforcement-officer-of-america/2020/02/18/b8ff49c0-5290-11ea-b119-4faabac6674f_story.html">saw himself</a> as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.” </p>
<p>Meanwhile, President <a href="https://www.whitehouse.gov/administration/president-biden/">Joe Biden</a> has <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3093&context=nclr">a long history</a> of supporting the independence of Department of Justice investigations, dating as far back as his <a href="https://www.judiciary.senate.gov/about/chairman/previous">1987-1995 tenure as chairman of the Senate Judiciary Committee</a>.</p>
<p>Barr once <a href="https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-yates/2017/02/01/5981d890-e809-11e6-80c2-30e57e57e05d_story.html">argued</a> that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.” </p>
<p>In contrast, Garland – a former U.S. circuit judge – <a href="https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland">insists</a> that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”</p>
<p>Given that <a href="https://www.youtube.com/watch?v=9TeYOZWGu8s">Trump</a> and <a href="https://www.nbcnews.com/politics/joe-biden/biden-cranks-courtship-top-donors-ahead-2024-presidential-election-rcna59029">Biden</a> may end up facing off in <a href="https://www.newyorker.com/news/letter-from-bidens-washington/are-we-doomed-to-see-a-biden-trump-rematch-in-2024">2024</a>, it makes sense that Garland would want to appoint a special counsel in order to avoid directly overseeing any investigations into a political opponent of the president under whom he serves. </p>
<p>Still, Smith will not be entirely independent of Garland, just as Garland <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">is not entirely independent</a> of Biden.</p><img src="https://counter.theconversation.com/content/195640/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special counsels are not entirely independent, but they do still help administrations avoid the perception of bias.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1923242022-10-13T12:21:58Z2022-10-13T12:21:58ZJan. 6 Committee’s fact-finding and bipartisanship will lead to an impact in coming decades, if not tomorrow<figure><img src="https://images.theconversation.com/files/489460/original/file-20221012-11-ym4nec.jpeg?ixlib=rb-1.1.0&rect=17%2C0%2C5773%2C3855&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A tweet from former President Donald Trump is shown on a screen at the House Jan. 6 committee hearing on June 9, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/tweet-from-former-president-donald-trump-is-shown-on-a-news-photo/1241210230">Jabin Botsford/POOL/AFP via Getty Images</a></span></figcaption></figure><p>The committee formed to investigate the role of former President Donald Trump and key aides in last year’s Capitol insurrection faced high stakes as it held its 10th and possibly last public hearing on Oct. 13, 2022.</p>
<p>Since the committee debuted its evidence in prime time on June 9, 2022, Vice-Chair Liz Cheney of Wyoming, one of two Republicans on the committee, <a href="https://www.nytimes.com/2022/08/16/us/politics/harriet-hageman-liz-cheney-wyoming.html">lost her House seat in a primary election</a>. The other GOP committee member, Rep. Adam Kinzinger of Illinois, <a href="https://www.politico.com/news/2021/10/29/rep-adam-kinzinger-wont-seek-reelection-next-year-517599">announced last year that he isn’t running for reelection</a>. </p>
<p>Should Republicans regain the House majority in November’s midterm elections, presumptive Speaker Kevin McCarthy could disband, or reconstitute, the committee. Some GOP House members have indicated that they <a href="https://www.cnn.com/2022/07/15/politics/house-republicans-investigation-plans-trump/index.html">might use their newfound control over investigations to probe the committee members themselves</a> over how they have conducted their work. </p>
<p>Thus, the committee faces a ticking clock as it wraps up its hearings and <a href="https://www.axios.com/2022/09/26/jan6-committee-hearing-sept28-trump">finalizes its report</a>, which may recommend criminal charges against Trump and crucial election security reforms. However, it is possible that there will be no immediate legal, policy or political ramifications of the committee’s work. </p>
<p>But as <a href="https://theconversation.com/profiles/claire-leavitt-1351188">a scholar of oversight</a> who in 2019 spent a year working on the Democratic majority staff of the House Committee on Oversight and Reform, I believe the committee’s work will have historic impact. That effect, though, may take years to be seen and felt.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman dressed in a black jacket and white shirt wipes tears from her face while giving testimony at a table in a large room filled with people." src="https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/489406/original/file-20221012-22-pvivst.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Wandrea ‘Shaye’ Moss, a former Georgia election worker, becomes emotional while testifying as her mother, Ruby Freeman, watches during a hearing held by the House January 6th committee on June 21, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/wandrea-arshaye-shaye-moss-former-georgia-election-worker-news-photo/1241441997?phrase=january%206%20committee%20wandrea&adppopup=true">Michael Reynolds-Pool/Getty Images</a></span>
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</figure>
<h2>Accountability and effectiveness</h2>
<p>Although 919 people have been <a href="https://www.insider.com/all-the-us-capitol-pro-trump-riot-arrests-charges-names-2021-1">charged with crimes in relation to the Capitol insurrection thus far</a>, there’s still a lot the committee doesn’t know – or hasn’t revealed – <a href="https://www.washingtonpost.com/national-security/2022/06/29/trump-january-6-timeline/">about Trump’s direct involvement in the insurrection</a>. </p>
<p>And no matter how compelling a case the committee’s final report might make, the Department of Justice <a href="https://news.bloomberglaw.com/white-collar-and-criminal-law/doj-is-likely-to-wait-past-election-to-reveal-any-trump-charges">may simply choose not to indict</a> the former president. </p>
<p>In terms of policy changes that could emerge from the committee’s efforts, <a href="https://www.cbsnews.com/news/electoral-count-act-reform-bill-passes-house-of-representatives-today-2022-09-21/">the House passed the Presidential Election Reform Act</a> in September 2022, which among other provisions clarifies the vice president’s role in the certification of Electoral College votes. The Senate has taken bipartisan action on their version of the bill, but its fate is still uncertain. </p>
<h2>Courting the public</h2>
<p>Political scientist Paul Light argues that the most “high impact” investigations over the course of American history achieved their success <a href="https://www.brookings.edu/wp-content/uploads/2016/06/LIghtPaperDec2013.pdf">“through a mix of fact-finding, bipartisanship, and strong leadership</a>.” The Jan. 6th Committee took an approach that emphasized facts in presenting its case to the American people. </p>
<p>It dampened charges of partisanship leveled by Trump and his GOP supporters by granting Republicans Cheney and Kinzinger prominent roles. <a href="https://www.lawfareblog.com/lessons%E2%80%94and-limits%E2%80%94-jan-6-committee">Cheney chaired the committee’s final prime-time hearing this past summer</a>. And the committee showcased extensive testimony from officials whose Republican bona fides are unimpeachable, such as former <a href="https://www.youtube.com/watch?v=dpwCApZh6KQ">Attorney General William Barr</a>, <a href="https://www.washingtonpost.com/politics/interactive/2022/cassidy-hutchinson-jan-6-hearing-testimony-illustrated/">former White House aide Cassidy Hutchinson</a> and <a href="https://www.youtube.com/watch?v=06QUOzmMyec">Georgia Secretary of State Brad Raffensperger</a>. </p>
<p>The committee also maximized its visibility by <a href="https://www.axios.com/2022/06/06/jan-6-committee-adviser-james-goldston">hiring former ABC News President James Goldston</a> to produce the hearings, and <a href="https://www.forbes.com/sites/bradadgate/2022/07/09/the-january-6-hearings-are-the-best-television-series-of-the-summer/">approximately 55 million people watched at least part of the hearings this past summer</a>. </p>
<p>The committee even dominated the cultural conversation by highlighting meme-able moments, including Republican Senator Josh Hawley of Missouri running from the rioters <a href="https://www.washingtonpost.com/nation/2022/07/22/josh-hawley-running-video-capitol/">after raising his fist in solidarity earlier that morning</a>. </p>
<p>There is also <a href="https://www.politico.com/news/2022/07/20/jan-6-hearings-trump-support-falls-00046662">some, though not overwhelming, evidence</a> that the hearings diminished support for Trump both in the polls and among donors. However, it’s worth recalling that public opinion as the Watergate scandal was unfolding did not reflect the extent to which <a href="https://www.washingtonpost.com/news/politics/wp/2017/05/15/how-america-viewed-the-watergate-scandal-as-it-was-unfolding/">President Nixon’s legacy would suffer as a result</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man wearing glasses and in a dark suit, sitting in front of an American flag along with a woman in a white jacket and wearing glasses." src="https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/489412/original/file-20221012-24-1dn0nj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The committee’s leaders were Democratic Rep. Bennie Thompson, left, chairman, and Republican Rep. Liz Cheney, vice chairwoman.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/representative-and-committee-chairman-bennie-thompson-and-news-photo/1241482478?phrase=january%206%20committee%20thompson%20cheney&adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
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</figure>
<h2>Taking time to unfold</h2>
<p>Assessing the full impact of the investigation requires patience – probably decades’ worth. </p>
<p>I believe the House Jan. 6 committee’s legacy will depend on how its in-depth rendering of the events surrounding the 2020 election and the ensuing insurrection is presented, repeated and understood by successive generations of Americans. </p>
<p>Congress had originally planned to <a href="https://www.washingtonpost.com/politics/pelosi-mccarthy-jan6-committee/2021/07/21/21722d44-ea41-11eb-84a2-d93bc0b50294_story.html">establish an independent body</a> to investigate the Capitol attacks, <a href="https://www.npr.org/2021/05/26/999930573/why-a-9-11-commission-is-popular-but-may-not-happen-for-the-jan-6-capitol-attack">modeled on the 9/11 Commission</a> – an idea killed by Senate Republicans last year. So the House committee’s work constitutes, at least thus far, the authoritative public record on the insurrection, with no credible competitor. </p>
<p>This record will serve as a permanent, invaluable cache of information for future investigators, both inside and outside of Congress. It will also inform and inspire the scholars, journalists, novelists and <a href="https://deadline.com/2022/01/january-6-insurrection-movie-billy-ray-adam-mckay-1234916344/">filmmakers</a> who are already shaping the public’s collective understanding of a watershed moment in the history of American democracy. </p>
<p>The Jan. 6th committee’s <a href="https://www.axios.com/2022/09/22/jan-6-report-book-publishers-new-yorker">unpublished report is in hot demand from publishers</a>. It is <a href="https://www.msnbc.com/the-beat-with-ari/watch/jan-6-report-is-1-bestseller-in-america-before-release-exclusive-melber-foreword-on-coup-conspiracy-149050437948">already a bestseller in presales</a>, despite the fact that it will be freely available as part of the public domain.</p>
<p>The <a href="https://www.historians.org/research-and-publications/perspectives-on-history/october-2020/a-new-view-of-event-history-collective-consciousness-as-a-historical-force">process by which events become part of the public consciousness</a> is slow and often imperceptible, but it is a legacy arguably as important as the discrete electoral or policy outcomes that emerge – or not – in the short term. </p>
<p>As one of my students at Smith College recently put it: “Being sixteen years old and watching people attack the Capitol - I never thought I’d see anything like it. The way my grandparents talk about JFK’s assassination or the Kent State massacre is the way I might talk about this to my kids someday.”</p><img src="https://counter.theconversation.com/content/192324/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy.</span></em></p>A lot of facts have come forward through the efforts of the House Select Committee to Investigate the January 6 Attack on the United States Capitol. What will its efforts mean to the US?Claire Leavitt, Assistant professor of government, Smith CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1884832022-08-09T17:15:17Z2022-08-09T17:15:17ZHow the FBI knew what to search for at Mar-a-Lago – and why the Presidential Records Act is an essential tool for the National Archives and future historians<figure><img src="https://images.theconversation.com/files/478302/original/file-20220809-13115-u9tdgl.jpeg?ixlib=rb-1.1.0&rect=17%2C0%2C5734%2C3828&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The gate to former President Donald Trump's home at Mar-A-Lago in Palm Beach, Fla., on Aug. 8, 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/woman-talks-to-palm-beach-police-officer-in-front-of-former-news-photo/1242395114?adppopup=true">Photo by Eva Marie Uzcategui/Getty Images</a></span></figcaption></figure><p><em>A new indictment of former President Donald Trump on July 27, 2023, added <a href="https://www.cnn.com/2023/07/27/politics/trump-mar-a-lago-special-counsel/index.html">another charge</a> related to retention of classified documents to an existing indictment issued last month. The charges followed a long process of the National Archives and Records Administration asking the former president on multiple occasions to return the records he took with him after he left office. The Conversation U.S. asked <a href="https://scholar.google.com/citations?user=_khILTgAAAAJ&hl=en">Shannon Bow O'Brien</a>, a scholar of the presidency at the University of Texas, Austin College of Liberal Arts, to discuss the history, law and customs associated with presidential archives.</em></p>
<h2>How do the archivists actually know what’s missing? Isn’t that hard to figure out?</h2>
<p>The archivists probably have a really keen idea of what is and what isn’t missing, based upon things that they’ve gotten out of other offices, like the vice president’s office and things that got deposited from the secretary of state, for example. There are a lot of papers that are referenced and cross-referenced, multiple copies or multiple things going in and out of offices. </p>
<p><a href="https://books.google.com/books?id=CQhTDwAAQBAJ">One scholar did a study of the presidents’ annual Christmas speech</a> at the Ellipse in Washington. He looked at how the speeches – from the Roosevelt administration to the present – developed, and it was kind of a ring-around-the-rosy inside the West Wing and within the departments – what went in, what went out, what went in, what went out. Who won and who didn’t win. Everybody left their marks on the speeches. All of those changes and requests appear in documents, and if part of the conversation is missing from the National Archives, it’s obvious. </p>
<figure class="align-center ">
<img alt="A middle-aged white man is dressed in a navy blue business suit and sitting on a leather chair behind a wooden desk." src="https://images.theconversation.com/files/478332/original/file-20220809-20-aa9bfu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478332/original/file-20220809-20-aa9bfu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478332/original/file-20220809-20-aa9bfu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478332/original/file-20220809-20-aa9bfu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478332/original/file-20220809-20-aa9bfu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478332/original/file-20220809-20-aa9bfu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478332/original/file-20220809-20-aa9bfu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">President Donald Trump in the Oval Office on Sept. 17, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-in-the-oval-office-during-an-news-photo/1273073640?adppopup=true">Oliver Contreras-Pool/Getty Images</a></span>
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<p>We know from other presidents’ records that really comprehensive records are kept via daily manifests of what the presidents are doing. And while I am not a historian, it’s not unreasonable to assume that the other departments and agencies likewise have daily manifests of their top officials. So if they know that someone at an agency sent something over to the White House that was this or that, and it came back from the White House with this or that, then there should be a document somewhere that’s got something from the White House on it – and if you’re missing that, that’s a problem. </p>
<h2>Will the public find out what was in these documents, given that they are classified?</h2>
<p>The indictment against Trump spells out the grade of classification the documents had – they get different levels based on the level of seriousness – but only vaguely refers to the contents. We’ll be lucky to ever know if, and when, the documents get declassified, although some more description of the contents could come out during the trial.</p>
<h2>What’s the law that governs what happens to a president’s documents?</h2>
<p>It’s the <a href="https://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter22&edition=prelim">Presidential Records Act</a>. It came about originally because these guys, the presidents, were just kind of doing whatever the heck they wanted with their records. Hoover donates his; FDR doesn’t.</p>
<p><a href="https://theconversation.com/trump-wants-the-national-archives-to-keep-his-papers-away-from-investigators-post-watergate-laws-and-executive-orders-may-not-let-him-169871">The act, first passed in 1978, says administrations have to retain</a> “any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.”</p>
<p>An administration is allowed to exclude personal records that are purely private or don’t have an effect on the duties of a president. All public events are included, such as quick comments on the South Lawn, short exchanges with reporters and all public speeches, radio addresses and even public telephone calls to astronauts in space. Diaries and journals are off limits, but any <a href="https://www.archives.gov/files/guidance-on-presidential-records-from-the-national-archives-and-records-administration-2020.pdf">papers to carry out the job are public records</a>. </p>
<h2>Have there been other controversies over presidential records?</h2>
<p>There’s one that poses an essential question: What value can you place on history? In 1998, the Nixon estate felt his records had a monetary value of over <a href="https://www.washingtonpost.com/archive/politics/1998/12/03/pricing-the-nixon-records/d15a3bb1-16a3-4d4c-99d8-cba4c806ef36/">US$200 million and sued the government, which had seized the records, for what they believed their value amounted to</a>. </p>
<figure class="align-center ">
<img alt="A middle-aged white man sits behind a desk and poses for a portrait." src="https://images.theconversation.com/files/478333/original/file-20220809-11706-qsfa3v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478333/original/file-20220809-11706-qsfa3v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478333/original/file-20220809-11706-qsfa3v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478333/original/file-20220809-11706-qsfa3v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478333/original/file-20220809-11706-qsfa3v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478333/original/file-20220809-11706-qsfa3v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478333/original/file-20220809-11706-qsfa3v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The actions of U.S. President Richard Nixon prompted numerous federal presidential record-keeping laws after the Watergate scandal.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/richard-nixon-in-united-states-in-the-1970s-in-the-oval-news-photo/120446370?adppopup=true">Don Carl Steffen/Gamma-Rapho via Getty Images</a></span>
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<p>There’s a two-decade background to the case. After he left the presidency, Nixon <a href="https://supreme.justia.com/cases/federal/us/433/425/">brokered a deal with the General Services Administration</a> about the retention of his records, but <a href="https://www.washingtonpost.com/archive/politics/1998/12/03/pricing-the-nixon-records/d15a3bb1-16a3-4d4c-99d8-cba4c806ef36/">when knowledge of it became public, there was considerable outcry</a>. A large amount of material was to be withheld from public view, and there was concern the depth of Nixon’s true involvement in Watergate would be obscured. </p>
<p>Congress responded and in 1974, President Gerald Ford signed the <a href="https://www.archives.gov/presidential-libraries/laws/1974-act.html">Presidential Recordings and Materials Preservation Act</a> to specifically apply to Nixon’s presidential materials. It gave the archivists the power to seize materials from Nixon’s time in the White House and return those deemed private. </p>
<p><a href="https://supreme.justia.com/cases/federal/us/433/425/">Nixon immediately sued</a> over who possessed his records. While he had already been pardoned when it was enacted, Nixon was concerned about his reputation and legacy. He wanted control over what the public saw about his time in office. One of the major issues in front of the court involved the disposition of documents he believed were private. Given the scandal associated with his resignation, should these documents be inspected by archivists for veracity?</p>
<p>More important, did the government have the right to seize presidential documents?</p>
<p><a href="https://supreme.justia.com/cases/federal/us/433/425/#471">In a 7-2 decision, the Supreme Court rejected all of Nixon’s arguments</a>. They said his privacy rights were still intact because the archivists were not making things immediately public but inspecting them and retaining public items while returning family ones. The court noted the “unblemished record of the archivists for discretion.” </p>
<p>In 2000, the <a href="https://www.nytimes.com/2000/06/13/us/government-agrees-to-pay-nixon-estate.html">lawsuit was settled</a> over the Nixon records, with the bulk of the settlement money going to pay attorney fees. Some observers were unhappy, because these documents should have already been considered public, but the decision was likely made to finally close this chapter on American history. In 2007, the <a href="https://www.archives.gov/publications/prologue/2007/fall/nixon-lib.html">Nixon library in California became public and integrated into National Archives</a>.</p>
<p><em>This story, which includes parts of <a href="https://theconversation.com/whether-up-in-smoke-or-down-the-toilet-missing-presidential-records-are-a-serious-concern-176964">an article originally published</a> on Feb. 11, 2022, was last updated on July 28, 2023.</em></p><img src="https://counter.theconversation.com/content/188483/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shannon Bow O'Brien does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A presidential scholar sets the history and context for the battle over President Trump’s official records – and says it isn’t the first records battle between the government and a former president.Shannon Bow O'Brien, Associate Professor of Instruction, The University of Texas at AustinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1853692022-06-28T19:53:21Z2022-06-28T19:53:21ZJan. 6 hearings are only the tip of the iceberg when it comes to important congressional oversight hearings<figure><img src="https://images.theconversation.com/files/470377/original/file-20220622-26-nvcdd0.jpeg?ixlib=rb-1.1.0&rect=24%2C12%2C8218%2C5413&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Members of the House committee investigating the Jan. 6 attack listen during the fourth hearing on June 21, 2022, in Washington, D.C. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-house-select-committee-hearing-to-news-photo/1241440996?adppopup=true">Mandel Ngan/POOL/AFP via Getty Images</a></span></figcaption></figure><p>In a series of hearings that have received <a href="https://theconversation.com/how-a-public-hearing-is-different-from-an-investigation-and-what-that-means-for-the-jan-6-committee-184342">prime-time coverage and much public attention</a>, Cassidy Hutchinson’s testimony on the afternoon of June 28 contained perhaps the most explosive revelations thus far. </p>
<p>Speaking before a hastily called hearing of the <a href="https://january6th.house.gov/">House Select Committee to Investigate the January 6 Attack on the United States Capitol</a>, Hutchinson, a former aide to White House Chief of Staff Mark Meadows, revealed that former President Donald Trump was warned about the potential for violence at the Jan. 6 rally and nevertheless wanted security precautions lifted, including the use of magnetometers to detect weapons. <a href="https://www.nytimes.com/2022/06/28/us/meadows-aide-to-testify-before-jan-6-panel-at-surprise-hearing.html?smid=url-share">She also testified that</a> a furious Trump tried to grab control of the steering wheel of his SUV from his Secret Service driver so he could be driven to the Capitol, not the White House, after the rally.</p>
<p>The hearings have provided a meticulously crafted narrative of the events that led to – and took place on – Jan. 6, 2021. Yet despite the revelatory and unique content of these hearings, the select committee’s work represents only a small fraction of the steady stream of oversight work Congress conducts every day. </p>
<p>Oversight, broadly speaking, may best be described as information gathering that is not directly related to a specific bill under consideration by Congress. In the 116th Congress, which met from 2019 to 2020, <a href="https://www.brookings.edu/interactives/tracking-house-oversight-in-the-trump-era/">the House alone held 405 hearings not related to specific pieces of legislation</a>.</p>
<p>What is the nature of this less prominent oversight work? Why is this work important?</p>
<h2>‘Police patrol’ vs. ‘fire alarm’</h2>
<p>The political scientists Matthew McCubbins and Thomas Schwartz have classified Congress’ nonlegislative work as consisting of <a href="https://doi.org/10.2307/2110792">“police patrol” oversight and “fire alarm” investigations</a>. </p>
<p>“Fire alarm” probes are initiated when something specific has gone wrong: a protest that turns violent, perhaps; the government’s <a href="https://www.govinfo.gov/app/details/CRPT-109hrpt377/CRPT-109hrpt377">poor response to a natural disaster</a>; or an agency that is caught wasting taxpayer money. In these investigations, Congress’ job is to figure out what happened and demand some form of justice on behalf of the American public. </p>
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<a href="https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a dark suit, white shirt, gesturing with both his hands out and talking to someone across the room." src="https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=359&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=359&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=359&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=451&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=451&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470378/original/file-20220622-7816-1tu0f6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=451&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">‘We were not prepared for this,’ said William Lokey, FEMA’s Federal Coordinating Officer for Louisiana during the response to Hurricane Katrina, in a Jan. 30, 2006, Senate committee hearing investigating the federal government’s poor response to that hurricane.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/william-lokey-chief-of-the-federal-emergency-management-news-photo/56705025?adppopup=true">Chip Somodevilla/Getty Images</a></span>
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<p>Justice could include the firing, resignation or criminal indictment of a government official. That happened most famously in the aftermath of Congress’ Watergate investigation, which led to <a href="https://www.cnn.com/2014/01/23/us/watergate-fast-facts/index.html">President Richard Nixon’s resignation and convictions of three Nixon aides for obstruction of justice</a>. </p>
<p>In addition to this retroactive investigative work, Congress also keeps watch over federal agencies and programs. Like a police car idling on a street before any actual crime is committed, congressional committees oversee what federal agencies are doing to stave off waste, fraud and abuse before it happens. </p>
<p>Committees accomplish this by consistently requesting documents and testimony from agency officials, and also by relying on the work of the independent, nonpartisan agencies such as the <a href="https://www.everycrsreport.com/files/20080910_RL30349_4ca46f580380ac76857b3e32e4be3937b331909a.pdf">Government Accountability Office</a>, commonly referred to as the <a href="https://www.gao.gov/about">“congressional watchdog,”</a> and the <a href="https://crsreports.congress.gov/product/pdf/R/R45450">Offices of Inspectors General</a>. In some cases, Congress will write into law the requirement that agencies provide intermittent updates on the <a href="https://www.everycrsreport.com/files/20200514_R46357_3c89b961380edcaceb4d4623833bf92f93e424b1.pdf">implementation and success of new programs</a>. </p>
<h2>Checks and balances</h2>
<p>While Congress’ power to conduct investigations is not explicit in the U.S. Constitution, <a href="https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-18/implied-power-of-congress-to-conduct-investigations-and-oversight-doctrine-and-practice">the Supreme Court has repeatedly affirmed</a> the legislative branch’s broad oversight powers. </p>
<p>As <a href="https://www.law.cornell.edu/supremecourt/text/354/178">Chief Justice Earl Warren wrote in 1957</a>: “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. … It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.”</p>
<p>Most importantly, Congress’ power to investigate is a crucial part of the Constitution’s checks-and-balances framework. </p>
<p>Of the federal government’s three branches – legislative, judicial and executive – Congress is the most closely connected to the American people. By ensuring that the president and the large, sprawling federal bureaucracy are held accountable for their mistakes by directly elected representatives, Congress prevents the executive branch from becoming too powerful. While <a href="https://sgp.fas.org/crs/misc/RL32935.pdf">Congress also has some authority to investigate the federal judiciary</a>, it is a much rarer target.</p>
<p>Additionally, an important and yet often overlooked part of accountability is the process of learning, and then applying, practical lessons from past mistakes. Congress’ oversight work looks at government in three dimensions: why things went wrong in the past, how things are going now, and what can be done to make things better in the future. </p>
<p>Committees thus often propose legislative recommendations at the end of investigations. For instance, the Jan. 6 committee may suggest ways in which Congress can <a href="https://www.axios.com/2022/06/05/january-6-committee-electoral-college-reforms">increase the security and legitimacy of American elections</a>. </p>
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<span class="caption">House Oversight and Reform Committee Chair Elijah Cummings, D-Md., leads an April 2, 2019, meeting of the committee investigating security clearances granted by the Trump White House.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/WhiteHouseSecurityClearances/95dc3f77a7884cb78388802873c1f6ed/photo?Query=Elijah%20Cummings%20committee&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=&totalCount=135&currentItemNo=44">AP Photo/J. Scott Applewhite</a></span>
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<h2>Wider focus</h2>
<p>Congressional committees also may focus entire investigations on broad policy issues – anything from <a href="https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Oversight%20Environment%20Subcommittee%20-%20116th%20Climate%20Change%20Series%20Staff%20Report.pdf">the effects of climate change</a> to <a href="https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10%20FINAL.pdf">online sex trafficking</a> to <a href="https://info.publicintelligence.net/US-CellSiteSimulatorsPrivacy.pdf">the use of surveillance technology</a>. </p>
<p>These types of investigations are necessary for two reasons: First, members need to understand an issue in depth before they can propose effective legislation. Second, members need to build public support for their particular approach to a problem, and this requires that the people understand it.</p>
<p>For example, in <a href="https://www.cbsnews.com/news/elijah-cummings-new-power-as-house-oversight-committee-chairman-for-investigating-trump-60-minutes/">January 2019, Democratic Rep. Elijah Cummings of Maryland took over the chairmanship</a> of the House Committee on Oversight and Reform after the midterm elections returned Democrats to the majority. <a href="https://www.nytimes.com/2018/12/17/magazine/democrats-trump-investigation.html">Many observers expected</a> that his committee – the only one in the House devoted almost exclusively to oversight – would launch several investigations into then-President Donald Trump’s administration. </p>
<p>Indeed, the committee’s investigators immediately began looking into <a href="https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-01-23.EEC%20to%20Cipollone-WH%20re%20Security%20Clearances.pdf">problems with the White House’s security clearance process</a> and <a href="https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-07-2019.%20Immigrant%20Child%20Separations-%20Staff%20Report.pdf">child separations at the U.S.-Mexico border</a>, among other issues. </p>
<p>But the committee’s first hearing of the congressional session wasn’t focused on the Trump administration. Instead, it was on a policy issue close to Cummings’ heart: the high cost of prescription drugs. The purpose of the hearing and of the committee’s broader investigation, <a href="https://oversight.house.gov/legislation/hearings/examining-the-actions-of-drug-companies-in-raising-prescription-drug-prices">Cummings said</a>, was to “examine the actions of drug companies in raising prescription drug process and the effects of these actions on federal and state budgets and on American families.” Among the witnesses was <a href="https://docs.house.gov/meetings/GO/GO00/20190129/108817/HHRG-116-GO00-Wstate-WorshamA-20190129.pdf">Antroinette Worsham, whose daughter died because she was forced to ration insulin to treat her diabetes</a>. </p>
<p>During Cummings’ 10-month chairmanship, from January to October 2019, the committee held four hearings on prescription drugs, <a href="https://oversight.house.gov/news/reports">culminating in five reports</a> on the pricing practices at companies like Novartis and Bristol Myers Squibb. In December 2019, the House passed the <a href="https://www.nytimes.com/2019/12/12/us/politics/house-prescription-drug-prices.html">Elijah E. Cummings Lower Drug Costs Now Act</a> with two Republican votes, and <a href="https://www.washingtonpost.com/politics/2021/03/23/health-202-democrats-see-pathway-their-ambitious-drug-pricing-bill/">similar bipartisan legislation is currently under consideration in the Senate</a>. </p>
<p>And following this investigation, the Trump administration also <a href="https://www.kff.org/medicare/issue-brief/a-status-report-on-prescription-drug-policies-and-proposals-at-the-start-of-the-biden-administration/">issued several new directives intended to lower drug prices</a> for American consumers. </p>
<p>Of course, policymaking is a slow process, and change doesn’t happen overnight. But the committee’s drug-pricing investigation not only led to legislative action in the House but also may have contributed to administration action on an issue that appears to inspire genuine cross-party consensus. </p>
<p>There have been instances in which congressional investigations produce more immediate and tangible results. In May 2019, the CEO of TransDigm, a defense contractor, appeared before the House Oversight Committee <a href="https://media.defense.gov/2019/Feb/27/2002093922/-1/-1/1/DODIG-2019-060.PDF">to respond to reports</a> that the company had gouged prices and overcharged the Department of Defense US$16 million for military aircraft. A week later, <a href="https://oversight.house.gov/news/press-releases/transdigm-to-refund-161-million-to-dod-as-a-result-of-committee-investigation">TransDigm agreed to pay the full amount back to the government</a>. </p>
<p><a href="https://oversight.house.gov/news/press-releases/transdigm-to-refund-161-million-to-dod-as-a-result-of-committee-investigation">Said Cummings</a>: “This is solid, bread-and-butter oversight that helps our troops and the American taxpayers. We saved more money today for the American people than our committee’s entire budget for the year.”</p><img src="https://counter.theconversation.com/content/185369/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy. </span></em></p>Congress has the power to make sure government serves the public interest. Conducting investigations is one way lawmakers do that.Claire Leavitt, Visiting Assistant Professor of Political Science and Policy Studies, Grinnell CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1852462022-06-17T17:58:26Z2022-06-17T17:58:26ZJan. 6 committee hearings show what went right, not just what went wrong<figure><img src="https://images.theconversation.com/files/469508/original/file-20220617-5792-3wu1xa.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C5512%2C3655&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Two political conservatives, Greg Jacob, former counsel to Vice President Mike Pence, and Michael Luttig, a retired judge who was an adviser to Pence, testified to the House select committee investigating the Jan. 6, 2021, Capitol attack . </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotInvestigation/49402a72c38547c3a476c3da8e2549b3/photo?Query=Capitol%20riot%20Luttig%20Jacobs&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=now-14d&totalCount=49&currentItemNo=14">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>As the Jan. 6 committee’s hearings pass their halfway point, they have brought new details to light that explain the events of the attack on the Capitol and place them in context of a larger effort to overturn the 2020 presidential election.</p>
<p>In the first hearing, Committee Vice Chair Liz Cheney previewed the committee’s case that President Donald Trump <a href="https://www.cnn.com/2022/06/15/politics/jan-6-committee-divided-criminal-referrals-trump-justice-department/index.html">committed a crime</a> when he alleged widespread voter fraud and encouraged his supporters to contest the 2020 election. The second hearing demonstrated that Trump was repeatedly told <a href="https://www.npr.org/2022/06/13/1104690690/heres-every-word-of-the-second-jan-6-committee-hearing-on-its-investigation">by his own advisers</a> his claims were false. The committee used the third hearing to focus on an <a href="https://www.nbcnews.com/politics/congress/live-blog/january-6-hearings-day-three-live-updates-rcna32981">illegal and unconstitutional plan</a> to block the certification of Joe Biden as president.</p>
<p>The evidence presented in the proceedings – including <a href="https://www.buzzfeednews.com/article/kadiagoba/jan-6-capitol-violent-videos">surveillance footage</a> of the violence as a mob assaulted Capitol police officers – has led to discussions across the country and around the <a href="https://global.chinadaily.com.cn/a/202206/11/WS62a487bca310fd2b29e62212.html">globe about</a> the U.S. <a href="https://www.cnbc.com/2022/06/16/trump-capitol-riot-hearing-jan-6-investigators-hold-third-day-of-testimony.html">democratic system of governance</a>. </p>
<p>While coverage tends to focus on all that went wrong during the transition of presidential power, the hearings also showcased much of what went right. Namely, a widespread and profound commitment to the rule of law by a range of citizens and officials, <a href="https://theconversation.com/mike-pences-actions-on-jan-6-were-wholly-unremarkable-until-they-saved-the-nation-185325">from the vice president</a> to Trump administration staffers to outside advisers.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/469510/original/file-20220617-23-9xq4iu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supporters of President Trump storming the US Capitol, illuminated by a flare behind them." src="https://images.theconversation.com/files/469510/original/file-20220617-23-9xq4iu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/469510/original/file-20220617-23-9xq4iu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=372&fit=crop&dpr=1 600w, https://images.theconversation.com/files/469510/original/file-20220617-23-9xq4iu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=372&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/469510/original/file-20220617-23-9xq4iu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=372&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/469510/original/file-20220617-23-9xq4iu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=468&fit=crop&dpr=1 754w, https://images.theconversation.com/files/469510/original/file-20220617-23-9xq4iu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=468&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/469510/original/file-20220617-23-9xq4iu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=468&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The House Jan. 6 committee hearings are focusing on the events that led up to the storming of the U.S. Capitol by Trump supporters.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/flash-bang-is-fired-at-supporters-of-president-trump-who-news-photo/1230475799?adppopup=true">Evelyn Hockstein/For The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Dedicated public servants</h2>
<p>Understandably, much of the attention on the hearings has <a href="https://www.nytimes.com/2022/06/16/us/trump-pence-election-jan-6.html">centered on the actions of President Trump</a> in the lead-up to Jan. 6. Other media coverage has focused on the <a href="https://www.usatoday.com/picture-gallery/news/politics/2022/06/14/jan-6-committee-members/9906780002/">members of Congress</a> who are serving on the committee.</p>
<p>But as a <a href="https://theconversation.com/profiles/jennifer-selin-842481">scholar of congressional oversight</a>, I believe that among the real stars of the three hearings are the talented – and largely unrecognized – teams of staffers who worked to obtain the evidence presented in the hearings. Often <a href="https://newrepublic.com/article/165756/capitol-hill-staff-app-cnct">underpaid</a>, these individuals are committed to making government work.</p>
<p>And their efforts uncovered people across all three branches of government with a similar commitment to upholding the Constitution and the rule of law. </p>
<p>The <a href="https://www.npr.org/2022/06/13/1104690690/heres-every-word-of-the-second-jan-6-committee-hearing-on-its-investigation">second hearing</a> revealed that campaign professionals, Justice Department officials, and even political appointees selected by President Trump tried to stop him from making false claims about the 2020 election.</p>
<p>That hearing also emphasized that, out of the <a href="https://www.usatoday.com/in-depth/news/politics/elections/2021/01/06/trumps-failed-efforts-overturn-election-numbers/4130307001/">62 lawsuits filed</a> challenging the results of the presidential election, 61 have failed. These decisions came from judges who were appointed by both Democrats and Republicans, including President Trump himself.</p>
<p>As committee Chair Bennie Thompson <a href="https://www.washingtonpost.com/national-security/2022/06/16/jan-6-committee-hearings-live-june-16/">said</a> to witnesses J. Michael Luttig, a conservative icon and adviser to Vice President Mike Pence, and Greg Jacob, legal counsel to Pence in the third hearing, he was mindful that “our system nearly failed and our democratic foundation destroyed, but for people like you.” </p>
<h2>Widespread, bipartisan cooperation</h2>
<p>Much of the public discussion leading up to the Jan. 6 hearings centered around the <a href="https://apnews.com/article/donald-trump-joe-biden-us-supreme-court-congress-capitol-siege-81abcdc965fe19597e5289e63ae7850b">refusal of President Trump</a> and <a href="https://theconversation.com/enforcing-unprecedented-subpoenas-for-gop-lawmakers-turns-on-complex-legal-precedent-going-back-centuries-183021">his allies</a> to provide information to the committee.</p>
<p>Yet these are the <a href="https://www.washingtonpost.com/politics/2022/01/04/january-6-committee-explainer/">outliers</a>. <a href="https://www.theguardian.com/us-news/2022/jun/09/what-are-jan-6-committee-hearings-donald-trump-evidence">The committee</a> successfully interviewed more than 1,000 people and reviewed more than 125,000 documents.</p>
<p>Among those who complied with congressional requests for information are the president’s <a href="https://www.yahoo.com/now/clips-jared-kushners-ivanka-trumps-170530940.html">own family</a> and <a href="https://www.nbcnews.com/politics/congress/pence-s-former-chief-staff-cooperating-jan-6-committee-n1285497">members of Pence’s inner circle</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/469512/original/file-20220617-11-xvbzuj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman with blond and dark hair in a blue jacket and white shirt, talking." src="https://images.theconversation.com/files/469512/original/file-20220617-11-xvbzuj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/469512/original/file-20220617-11-xvbzuj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/469512/original/file-20220617-11-xvbzuj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/469512/original/file-20220617-11-xvbzuj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/469512/original/file-20220617-11-xvbzuj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/469512/original/file-20220617-11-xvbzuj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/469512/original/file-20220617-11-xvbzuj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ivanka Trump, the former president’s daughter who served him as a senior adviser, provided testimony to the House Jan. 6 committee.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotInvestigation/49402a72c38547c3a476c3da8e2549b3/photo?Query=Capitol%20riot%20Luttig%20Jacobs&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=now-14d&totalCount=49&currentItemNo=14">Photo: House Select Committee via AP</a></span>
</figcaption>
</figure>
<h2>Recognition of legal framework</h2>
<p>There have been <a href="https://www.washingtonpost.com/graphics/2020/politics/abnormal-transitions-of-power-timeline/">many</a> contested elections and presidential scandals throughout history. </p>
<p>Thomas Jefferson and Aaron Burr’s <a href="https://www.smithsonianmag.com/history/thomas-jefferson-aaron-burr-and-the-election-of-1800-131082359/">infamous fight</a> for the presidency in 1800 and the <a href="https://thehill.com/opinion/campaign/525244-feehery-the-corrupt-bargain/">“corrupt bargain”</a> that made John Quincy Adams president in 1824 illustrate the anger and divisiveness that can accompany elections. And the <a href="https://millercenter.org/issues-policy/us-domestic-policy/making-teapot-dome-scandal-relevant-again">bribery scandal</a> involving President Warren Harding, coupled with President Richard Nixon’s implication in <a href="https://theconversation.com/woodward-and-bernstein-didnt-bring-down-a-president-in-watergate-but-the-myth-that-they-did-lives-on-183290">Watergate</a>, highlights the political stakes of the presidency. </p>
<p>In response, legally mandated procedures have <a href="https://www.rienner.com/title/Presidential_Transitions_From_Politics_to_Practice">regulated</a> the transition of power from one president to the next.</p>
<p>One of the most important pieces of this legal framework is the <a href="https://crsreports.congress.gov/product/pdf/RL/RL32717/12">Electoral Count Act</a>. Enacted by Congress in 1887, the law specifies exactly how Congress <a href="https://www.pbs.org/newshour/show/congress-nears-deal-to-reform-how-electoral-college-votes-are-counted">certifies presidential elections</a>.</p>
<p>Passage of the act was the result of a partisan battle over who won the 1876 presidential election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden. The <a href="https://www.270towin.com/1876_Election/">electoral votes of four states were disputed</a>, and Congress ultimately established a commission to determine the next president.</p>
<p>It is the only time in history that an <a href="https://www.history.com/news/reconstruction-1876-election-rutherford-hayes">extraconstitutional arrangement led to Congress’ deciding</a> a presidential election.</p>
<p>The June 16 hearing provided evidence of <a href="https://www.usatoday.com/story/news/politics/2022/06/16/jan-6-live-updates-trump-pressure-pence/7623118001/">disagreements</a> within the Trump administration over interpretation of these laws.</p>
<p>Yet almost everyone accepted the laws themselves. Even John Eastman, the lawyer at the <a href="https://www.nbcnews.com/politics/congress/takeaways-day-3-jan-6-hearings-lawyer-eastman-told-trump-election-plot-rcna34034">center of Trump’s legal strategy, recognized</a> that the plan to block certification of the election <a href="https://www.npr.org/2022/06/17/1105600072/who-is-john-eastman-the-trump-lawyer-at-the-center-of-the-jan-6-investigation">would not hold up in court</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/469514/original/file-20220617-11-9n488k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man holding a piece of white paper that has black print on it." src="https://images.theconversation.com/files/469514/original/file-20220617-11-9n488k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/469514/original/file-20220617-11-9n488k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/469514/original/file-20220617-11-9n488k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/469514/original/file-20220617-11-9n488k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/469514/original/file-20220617-11-9n488k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/469514/original/file-20220617-11-9n488k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/469514/original/file-20220617-11-9n488k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Vice President Mike Pence reads the final electoral vote counts declaring Joe Biden as the next U.S. president during a joint session of Congress, early on Jan. 7, 2021, after supporters of President Trump had stormed the U.S. Capitol.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vice-president-mike-pence-reads-a-sheet-of-paper-with-the-news-photo/1230463107?adppopup=true">Saul Loeb/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Holding elected officials accountable</h2>
<p>The framers of the U.S. Constitution struggled with making presidential power compatible with the values of the republic. Ultimately, <a href="https://billofrightsinstitute.org/primary-sources/federalist-no-70">the framers agreed that the ingredients</a> for a successful democracy required presidents to be held personally responsible for their behavior in office. </p>
<p>At least <a href="https://www.nytimes.com/2022/06/10/business/media/jan-6-hearing-ratings.html">20 million people</a> watched the first night of the hearings, which is on par with the ratings for Sunday Night Football or the Macy’s Thanksgiving Day Parade. <a href="https://theconversation.com/the-jan-6-hearings-are-tailor-made-for-social-media-that-doesnt-mean-theyre-reaching-a-wide-audience-185004">Many more saw excerpts</a> of testimony or statements on social media.</p>
<p>While the rioters on Jan. 6 shouted through the halls of Congress about taking back the power of the people, their insurrection failed. Instead, the men and women helping the Jan. 6 committee understand what went on that day are quietly, insistently, reminding Americans of the bedrock values of their republic. The framers’ vision of our democracy echoes today.</p><img src="https://counter.theconversation.com/content/185246/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The views expressed in this article are solely the views of the author and not the Carl Levin Center for Oversight and Democracy.</span></em></p>Coverage of the House Jan. 6 hearings focuses on what went wrong that led up to Trump supporters’ laying siege to the US Capitol. A government scholar looks at what went right, both then and now.Jennifer Selin, Co-director, Washington Office, Carl Levin Center for Oversight and Democracy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1850042022-06-17T12:35:08Z2022-06-17T12:35:08ZThe Jan. 6 hearings are tailor-made for social media – that doesn’t mean they’re reaching a wide audience<figure><img src="https://images.theconversation.com/files/469360/original/file-20220616-14-kc6y6j.jpg?ixlib=rb-1.1.0&rect=48%2C0%2C5381%2C3568&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Greg Jacob, who was counsel to former Vice President Mike Pence, and Michael Luttig, a retired federal judge, testified about the Jan. 6 attack on the Capitol.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotInvestigation/bb96c027abd54abb8096b60c39f79aae/photo">Michael Reynolds/Pool Photo via AP</a></span></figcaption></figure><p>On June 16, 2022, the House Committee investigating the Jan. 6 riot at the U.S. Capitol used its two-hour hearing to paint a picture of a relentless campaign by former President Donald Trump and his allies to pressure former Vice President Mike Pence into throwing the election to Trump.</p>
<p>The committee’s palette included video excerpts from witness interviews, live testimony from associates of both Pence and Trump, and clips showing crucial notes or excerpts from emails. The hearings, of which this was <a href="https://www.youtube.com/watch?v=Bnf4w6rocm8">the third</a>, run for approximately two-hour chunks of time. That’s a long time in today’s era of quick scrolling, one-minute TikToks and 240-character hot-take tweets. </p>
<p>But what the Jan. 6 committee hearings have shown so far is not the antithesis of social media. On the contrary, these hearings appear to be made for social media, given the elements of the presentation. The quick video cutaways, pithy sound bites and short interview clips, such as former Attorney General William Barr saying “bullshit” on repeat, are all easily broken off from the larger hearings to be repackaged as social media content. </p>
<p>So was the Jan. 6 insurrection.</p>
<p>In the days following the Jan. 6 attack, many pundits seemed <a href="https://www.businessinsider.com/capitol-building-officers-posed-for-selfies-helped-protesters-2021-1">baffled</a> that the insurrectionists had stormed the Capitol with phones in hand, taking videos and selfies. This seemed self-incriminating, and <a href="https://www.nytimes.com/2021/02/05/opinion/capitol-attack-cellphone-data.html">it turned out to be</a>. Yet <a href="https://datasociety.net/library/media-manipulation-and-disinfo-online/">scholars of the far-right</a> have long discussed how social media has been essential to that community. </p>
<p>Those who stormed the Capitol had a history of using platforms like Reddit, Twitter and YouTube and internet messaging types like memes to spread their views. Storming the Capitol included a simultaneous internet component because the internet was part of the plan from the beginning. It was <a href="https://medium.com/the-shadow/1-6-and-popular-culture-some-reflections-ed6b99c3a0db">no surprise that the insurrectionists documented their actions</a>.</p>
<p>It makes sense that the Jan. 6 committee hearings are equally tuned for social media. The goal of the Jan. 6 committee hearings is to impart information and tell the whole story of what really happened that day, and ideally, to reach as many in the American electorate as possible. Doing so also means understanding today’s media landscape, where clips shared on social media are just as important as the primary broadcast.</p>
<p>Being on social media doesn’t always guarantee that your message will go viral, however.</p>
<h2>Attention by the numbers</h2>
<p>With the frequent use of video interviews from the highest-ranking people in Trump’s circle, including Barr, Ivanka Trump, Jared Kushner and former New York City Mayor Rudy Giuliani, the Jan. 6 committee has turned Trump surrogates’ words into clips that can be easily separated from the broader hearings and shared online. </p>
<p>For instance, a Democratic SuperPAC has posted a TikTok video of a clip from <a href="https://www.tiktok.com/@meidastouch/video/7107412459752803626?_t=8T9uuUFUSpa&_r=1">a committee interview with Jason Miller</a>, a member of President Trump’s inner circle, with the word “admission” stamped across it. Similar TikToks boast in all caps <a href="https://www.tiktok.com/@davidpakmanshow/video/7107685555193875754?_t=8TDUHycIxe2&_r=1">SHOCKING REVELATION FROM J6 HEARING</a> over a clip of Republican Congresswoman and Select Committee Co-Chair Liz Cheney discussing Trump.</p>
<p>The Jan. 6 committee hearings have rightfully drawn historical comparisons to Congress’ Watergate hearings. According to the Nielsen ratings, <a href="https://www.smithsonianmag.com/smart-news/a-brief-history-of-televised-congressional-hearings-180980240/">an estimated three out of four American households tuned in to those hearings</a> at one point or another. But on Thursday, June 9, only <a href="https://www.washingtonpost.com/media/2022/06/10/nearly-19-million-watched-first-jan-6-hearing-prime-time/">18.8 million people tuned in</a> to the prime-time Jan. 6 committee hearings. Of those, just over <a href="https://www.npr.org/2022/06/13/1104529512/analyzing-the-television-ratings-for-the-first-hearing-on-the-jan-6-insurrection">15 million were aged 55 or older</a>. </p>
<p>Social media may be playing a role in how the Jan. 6 committee structures its hearings, but the creation of content doesn’t always translate into consumption. Younger generations don’t seem to be flocking to social media platforms to catch up on the hearings. At the time of writing, videos on TikTok with the hashtags #january6hearing, #january6thhearing and #j6hearings had less than a million views combined, and the hashtag #january6thcommission has 15.5 million views. </p>
<p>Even the hashtag #january6, which includes videos of all aspects of the insurrection dating back to when the attack happened, has just 90.3 million views. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/KXZF7HOKs-8?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">The Jan. 6 committee’s use of short video clips has provided fodder for social media.</span></figcaption>
</figure>
<p>Compare this to how the recent defamation trial between actors <a href="https://www.bbc.com/news/world-us-canada-61649522">Johnny Depp and Amber Heard played out on TikTok</a>, where the hashtag for those supporting Depp had over 18 billion views. Though TikTok <a href="https://blog.hootsuite.com/how-to-get-more-views-on-tiktok/#:%7E:text=Different%20social%20media%20platforms%20measure,all%20count%20as%20new%20views.">counts a view</a> as the video merely starting, not finishing, this is still a staggering number.</p>
<h2>Breaking through the noise</h2>
<p>The internet has been described as <a href="https://www.humanetech.com/youth/the-attention-economy#:%7E:text=2-,How%20does%20competing%20in%20the%20attention%20economy%20shape%20the%20social,competition%20within%20the%20attention%20economy.">an attention economy</a> in which there is more possible content than any one person could ever consume. The supply massively outpaces the demand. </p>
<p>So what do people, and politicians, do to break through the barrage of content online? Politicians have always chased soundbites, but on social media, grabbing attention is a practice and a mindset. People tend to perform in certain ways to produce content that is likely to stand out online. The Jan. 6 committee is no exception.</p>
<p>While viral moments can stand out from big, televised events <a href="https://theconversation.com/beyond-the-ratings-nbcs-olympics-telecast-showed-videos-future-165856">like the Olympics</a>, fewer and fewer people are tuning in to these in real time. </p>
<p>Crafting the Jan. 6 committee hearings to stand out on social media may not be having the committee’s desired effect. There could be numerous explanations for the lack of viral moments from the Jan. 6 committee hearings, from so-called <a href="https://www.urbandictionary.com/define.php?term=Trump-fatigue%20Syndrome">Trump Fatigue Syndrome</a> to being so inundated by large media events – war, mass shootings, Supreme Court rulings – that it becomes harder and harder to stand out. </p>
<p><a href="https://www.smithsonianmag.com/smart-news/a-brief-history-of-televised-congressional-hearings-180980240/">As the Washington Post reported on the Watergate hearings</a>, one woman said, “I’ve got to hurry home and watch the Senate investigation on TV. It’s more fun than an X-rated movie.” </p>
<p>But that’s not today’s media landscape. And as hyperpartisanship abounds, with Fox News refusing to air the hearings in prime time, trying to make noise on other media becomes crucial as a strategy to get a message out there. </p>
<p>While there is an argument that the hearings shouldn’t be about chasing internet fame, getting through to the public is important. And bits of information from the Jan. 6 committee are better than nothing.</p><img src="https://counter.theconversation.com/content/185004/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessica Maddox does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Today’s media landscape is a far cry from the days of Watergate. A media scholar looks at the challenge the Jan. 6 committee faces in getting the hearings to break through in the age of TikTok.Jessica Maddox, Assistant Professor of Journalism and Creative Media, University of AlabamaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1850302022-06-16T19:54:15Z2022-06-16T19:54:15ZWatergate at 50: the burglary that launched a thousand scandals<figure><img src="https://images.theconversation.com/files/469133/original/file-20220616-16-rsxs05.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Under siege: Richard Nixon in his White House office in 1974</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:President_Richard_Nixon_during_his_speech_to_the_Nation_on_Watergate.jpg">Nixon Library via Wikimedia</a></span></figcaption></figure><p>One of the more curious legacies of the Watergate scandal is so obvious that we barely notice it. </p>
<p>Watergate was the name of the Washington office complex where five men – later revealed to be working on behalf of US president Richard Nixon’s administration – were discovered burgling the Democratic Party’s national headquarters. Their arrest on June 17 1972 – 50 years ago today – not only led eventually to Nixon’s resignation but also fuelled an international tendency to add “-gate” to anything that looks scandalous. </p>
<p>The fashion was started by New York Times columnist William Safire, a former Nixon speechwriter, apparently to defend his former boss by showing just how prevalent scandals were. Early cases included Koreagate (following revelations of secret Korean donations to congressional candidates in the 1976 elections) and Billygate (named after president Jimmy Carter’s wayward younger brother, whose high-profile antics included promoting a new beer, Billybeer, and receiving money from the Libyan government) and Lancegate (sparked by the dubious business affairs of Carter cabinet member Bert Lance).</p>
<p>Fifty years later, the suffix is as popular as ever. When Will Smith dashed on stage and slapped MC Chris Rock for making a joke about his wife at this year’s Academy Awards, the incident was immediately labelled Slapgate. </p>
<p>More seriously, when British prime minister Boris Johnston and his colleagues defied government bans on social gatherings designed to curb the spread of COVID, the term Partygate was quickly, and damagingly, coined by the media.</p>
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<img alt="Aerial photo of waterfront hotel and office complex" src="https://images.theconversation.com/files/469135/original/file-20220616-10494-g695gk.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/469135/original/file-20220616-10494-g695gk.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=446&fit=crop&dpr=1 600w, https://images.theconversation.com/files/469135/original/file-20220616-10494-g695gk.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=446&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/469135/original/file-20220616-10494-g695gk.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=446&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/469135/original/file-20220616-10494-g695gk.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=561&fit=crop&dpr=1 754w, https://images.theconversation.com/files/469135/original/file-20220616-10494-g695gk.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=561&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/469135/original/file-20220616-10494-g695gk.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=561&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Where it all began: the Watergate complex in Washington.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:WatergateFromAir.JPG">Wikimedia</a></span>
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<p>Sometimes “-gates” go head to head, most famously during the 2016 US presidential election campaign. Around a month before the election, a tape emerged of Trump boasting to a male colleague about the things you can do to women if you’re a star. Inevitably it attracted the distasteful label, Pussygate, and so dominated the news that many thought Trump would have to withdraw his candidacy. </p>
<p>The other side of the equation came a couple of weeks later, when Emailgate made a comeback. It had been revealed some years earlier that Hillary Clinton had used private email rather than the official government server when she was secretary of state. Now, FBI director James Comey announced he was re-opening investigations. By giving Trump licence to denounce Clinton’s “corruption”, the decision guaranteed that the last weeks of the campaign would be dominated by this issue. Days before voting day, Comey cleared Clinton. </p>
<p>The prominence of the issue, highlighting what many thought was the tendency of the Clintons to make their own rules, may have caused some potential supporters to stay home, and so affected the election result.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/from-irreverence-to-irrelevance-the-rise-and-fall-of-the-bad-tempered-tabloids-113656">From irreverence to irrelevance: the rise and fall of the bad-tempered tabloids</a>
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</em>
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<p>My favourite “-gate” emerged from the scandal engulfing America’s most famous TV evangelist, Jim Bakker, and his wife Tammy after their multi-million dollar empire collapsed. Jim was eventually imprisoned for fraud and various sexual liaisons. The scandal was dubbed Pearlygate.</p>
<p>Perhaps the ultimate in wordplay came during two scandals labelled Gategate. The first was a brief episode in the colourful career of Colonel Oliver North, a Reagan administration official closely associated with the Iran-Contra scandal (sometimes called Irangate). During the furore, North was given taxpayer assistance to increase security at his home; the extravagance involved was labelled Gategate.</p>
<p>The other Gategate stretched on for a couple of years. In 2012, conservative MP Andrew Mitchell attempted to leave Downing Street by the main gate, only to be told by a police officer to use another one. He allegedly lost his temper and, amid his stream of abuse, called the officer a “pleb”. The subsequent uproar forced Mitchell to resign. Both politician and police officer launched defamation suits against the other, but the judge ruled in the police officer’s favour. British media used both Plebgate and Gategate as shorthand for the affair.</p>
<p>The term also spread to Australia, though not always to describe allegations with a solid basis. Utegate involved a charge of corruption launched spectacularly in 2009 by opposition leader Malcolm Turnbull against prime minister Kevin Rudd and treasurer Wayne Swan. Turnbull’s claim that they had acted improperly on behalf a Queensland car dealer seemed dramatic and damaging, but it turned out the key evidence was a forgery by Treasury official Godwin Grech. The charge collapsed in ignominy.</p>
<p>The list of scandals goes on. When NSW premier Barry O’Farrell was shown to have misled the Independent Commission Against Corruption by denying having received a $3000 bottle of Grange Hermitage from a Liberal colleague, Grangegate was the obvious shorthand. O’Farrell resigned as premier. When the speaker of the House of Representatives, Bronwyn Bishop, used taxpayers’ money to fly to a Liberal Party fundraiser at a cost of around $5000, Choppergate was born. Bishop resigned as speaker and lost preselection at the next election. </p>
<p>When Australian cricketers were found to have tampered with the ball during a test match in South Africa in 2018, the affair was labelled Sandpapergate. Three players, including captain Steve Smith and vice-captain David Warner, received suspensions.</p>
<p>Coming full circle, Australia had its own Watergate in 2019. A water buyback payment of $80 million under the Murray–Darling Basin scheme went to a company registered in the Cayman Islands. Minister Barnaby Joyce approved the payment, but it emerged that the company had been founded by another minister, Angus Taylor. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-watergate-heres-what-taxpayers-need-to-know-about-water-buybacks-115838">Australia's 'watergate': here's what taxpayers need to know about water buybacks</a>
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</em>
</p>
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<p>After 50 years, though, “-gate” has lost much of its force – and might even be an obstacle to rational debate. </p>
<p>On one notorious occasion, for example, the suffix was used widely to impute serious wrong-doing when none had occurred. In the lead-up to the Copenhagen summit on global warming in late 2009, emails from the Climate Research Unit at the University of East Anglia were hacked and snippets selectively publicised by a group of climate sceptics. </p>
<p>A series of inquiries eventually confirmed the integrity of the Centre’s research, but the hackers had succeeded in casting aspersions on climate science at a strategic moment, and part of their success was in the almost universal use in the media of the derogatory term, Climategate.</p>
<p>What these 50 years of examples show, above all, is that we’ve become increasingly desensitised to scandalous behaviour of many kinds. In a long-running scandal with several twists and turns – such as Boris Johnson’s Partygate, or Watergate itself – the label can be helpful shorthand. Most often, though, what was once attention-grabbing and sometimes an amusing gimmick has become a stale cliché.</p><img src="https://counter.theconversation.com/content/185030/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rodney Tiffen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Is it time to stop labelling scandals according to a Washington break-in 50 years ago?Rodney Tiffen, Emeritus Professor, Department of Government and International Relations, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1832902022-06-14T18:25:18Z2022-06-14T18:25:18ZWoodward and Bernstein didn’t bring down a president in Watergate – but the myth that they did lives on<figure><img src="https://images.theconversation.com/files/468494/original/file-20220613-13-9yinfb.jpeg?ixlib=rb-1.1.0&rect=16%2C0%2C3748%2C2647&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. President Richard Nixon at a White House lectern reading a farewell speech to his staff following his resignation on Aug. 9, 1974. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-richard-nixon-looks-down-as-stands-at-a-podium-news-photo/3245056?adppopup=true">George Tames/New York Times Co./Getty Images</a></span></figcaption></figure><p>In their dogged reporting of the Watergate scandal, Washington Post reporters Bob Woodward and Carl Bernstein <a href="https://www.cnn.com/2022/06/05/media/woodward-bernstein-watergate-anniversary/index.html">uncovered</a> the crimes that forced Richard Nixon to resign the presidency in August 1974.</p>
<p>That version of Watergate has long dominated popular understanding of the scandal, which <a href="https://apnews.com/article/5759bdb4f1414477a7108e0ca0ccaf6f">unfolded over 26 months beginning in June 1972</a>.</p>
<p>It is, however, a simplistic trope that not even Watergate-era principals at the Post embraced.</p>
<p>For example, the newspaper’s publisher during Watergate, Katharine Graham, pointedly rejected that interpretation during a program 25 years ago at the now-defunct Newseum in suburban Virginia.</p>
<p>“Sometimes, people accuse us of ‘bringing down a president,’ which of course we didn’t do, and shouldn’t have done,”<a href="https://www.c-span.org/video/?87494-1/breaking-watergate-story">Graham said</a>. “The processes that caused [Nixon’s] resignation were constitutional.”</p>
<p>Graham’s words, however accurate and incisive, scarcely altered the dominant popular interpretation of Watergate. If anything, the intervening 25 years have solidified the “<a href="https://mediamythalert.com/2017/04/28/the-heroic-journalist-myth-of-watergate-and-its-applications/">heroic-journalist</a>” myth of Watergate, which I address and dismantle in my book “<a href="https://www.ucpress.edu/book.php?isbn=9780520291294">Getting It Wrong: Debunking the Greatest Myths in American Journalism</a>.”</p>
<figure class="align-center ">
<img alt="Two men, one in a topcoat and one in a raincoat, walk away from a building. One is carrying a file folder." src="https://images.theconversation.com/files/468506/original/file-20220613-14-4qip2p.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/468506/original/file-20220613-14-4qip2p.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=414&fit=crop&dpr=1 600w, https://images.theconversation.com/files/468506/original/file-20220613-14-4qip2p.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=414&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/468506/original/file-20220613-14-4qip2p.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=414&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/468506/original/file-20220613-14-4qip2p.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=520&fit=crop&dpr=1 754w, https://images.theconversation.com/files/468506/original/file-20220613-14-4qip2p.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=520&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/468506/original/file-20220613-14-4qip2p.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=520&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Washington Post reporters Bob Woodward, left, and Carl Bernstein on March 1, 1974, Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/washington-post-reporters-bob-woodward-and-carl-bernstein-news-photo/53007233?adppopup=true">David Hume Kennerly/Getty Images</a></span>
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<h2>Impact exaggerated</h2>
<p>However <a href="https://www.nytimes.com/2005/06/05/opinion/life-lessons-from-watergate.html">popular</a>, the heroic-journalist myth is a vast exaggeration of the effect of their work.</p>
<p>Woodward and Bernstein did disclose <a href="https://www.washingtonpost.com/politics/bug-suspect-got-campaign-funds/2012/06/06/gJQAyTjKJV_story.html">financial links</a> between Nixon’s reelection campaign and the burglars arrested June 17, 1972, at headquarters of the Democratic National Committee, in what was the signal crime of Watergate.</p>
<p>They <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/092972-1.htm">publicly tied</a> prominent Washington figures, such as Nixon’s former attorney general, John Mitchell, to the scandal. </p>
<p>They <a href="https://www.pulitzer.org/winners/washington-post">won a Pulitzer Prize</a> for the Post.</p>
<p>But <a href="https://mediamythalert.com/2013/07/14/the-nixon-tapes-a-pivotal-watergate-story-that-wapo-missed/">they missed</a> decisive elements of Watergate, notably the payment of hush money to the burglars and the existence of Nixon’s White House tapes.</p>
<p>Nonetheless, the heroic-journalist myth became so entrenched that it could withstand disclaimers by Watergate-era principals at the Post such as Graham. Even Woodward has disavowed the heroic-journalist interpretation, once <a href="https://www.pbs.org/wgbh/pages/frontline/shows/press/interviews/woody2.html">telling an interviewer</a> that “the mythologizing of our role in Watergate has gone to the point of absurdity, where journalists write … that I, single-handedly, brought down Richard Nixon. </p>
<p>"Totally absurd.”</p>
<p>So why not take Woodward at his word? Why has the heroic-journalist interpretation of Watergate persisted through the 50 years since burglars linked to Nixon’s campaign were arrested at the Watergate complex in Washington? </p>
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<figcaption><span class="caption">The movie ‘All the President’s Men’ placed Woodward and Bernstein at the decisive center of Watergate’s unraveling.</span></figcaption>
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<h2>Glosses over intricacies</h2>
<p>Like most <a href="https://mediamythalert.com/2009/11/02/media-myths-faqs/">media myths</a>, the heroic-journalist interpretation of Watergate rests on a foundation of simplicity. It glosses over the scandal’s intricacies and discounts the far more crucial investigative work of special prosecutors, federal judges, the FBI, panels of both houses of Congress, and the Supreme Court. </p>
<p>It was, after all, the court’s <a href="http://blogs.kentlaw.iit.edu/iscotus/day-supreme-court-history-july-24-1974/">unanimous ruling</a> in July 1974, ordering Nixon to <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/072574-1.htm">surrender tapes</a> subpoenaed by the Watergate special prosecutor, that sealed the president’s fate. The recordings captured Nixon, six days after the burglary, agreeing to a plan to deter the FBI from pursuing its Watergate investigation.</p>
<p>The tapes were crucial to determining that Nixon had obstructed justice. Without them, he likely would have served out his presidential term. That, at least, was the interpretation of the late Stanley Kutler, one of Watergate’s leading historians, <a href="https://mediamythalert.com/2011/10/25/historian-dismisses-as-self-promotion-the-heroic-journalist-interpretation-of-watergate/">who noted</a>: “You had to have that kind of corroborative evidence to nail the president of the United States.”</p>
<p>The heroic-journalist myth, which <a href="https://archives.cjr.org/behind_the_news/ben_bradlee_and_watergate_exce.php">began taking hold</a> even before Nixon resigned, has been sustained by three related influences.</p>
<p>One was <a href="https://www.simonandschuster.com/books/All-the-Presidents-Men/Bob-Woodward/9781476770512">Woodward and Bernstein’s “All the President’s Men</a>,” the well-timed memoir about their reporting. “All the President’s Men” was published in June 1974 and quickly reached the top of The New York Times bestseller list, remaining there 15 weeks, through Nixon’s resignation and beyond. The book inescapably promoted the impression Woodward and Bernstein were vital to Watergate’s outcome.</p>
<p>More so than the book, the <a href="https://www.imdb.com/title/tt0074119/">cinematic adaptation of “All the President’s Men</a>” placed Woodward and Bernstein at the decisive center of Watergate’s unraveling. The movie, which was released in April 1976 and starred Robert Redford and Dustin Hoffman, was relentlessly media-centric, <a href="https://mediamythalert.com/2011/02/27/wapo-on-historically-faulty-films-ignoring-atpm/">ignoring</a> the work of prosecutors and the FBI. </p>
<p>The book and movie introduced Woodward’s super-secret source, “Deep Throat.” For 31 years after Nixon’s resignation, Washington periodically engaged publicly in <a href="https://greensboro.com/guessing-game-ends-with-few-getting-it-right/article_b7c4403b-bb0a-509c-8d6f-22308b492565.html">guessing games</a> about the source’s identity. Such speculation <a href="https://jacklimpert.com/2018/09/for-the-record-who-first-fingered-mark-felt-as-the-likely-deep-throat/">sometimes pointed to</a> W. Mark Felt, a former senior FBI official. </p>
<p>Felt <a href="https://www.washingtonpost.com/dc-md-va/2018/09/07/dozens-trump-officials-say-they-didnt-do-it-so-did-deep-throat-years/">brazenly denied</a> having been Woodward’s source. Had he been “Deep Throat,” he <a href="https://www.courant.com/news/connecticut/hc-xpm-1999-07-28-9907280810-story.html">once told a Connecticut newspaper</a>, “I would have done better. I would have been more effective.” </p>
<p>The “who-was-Deep-Throat” conjecture kept Woodward, Bernstein and the heroic-journalist myth at the center of Watergate conversations. Felt was 91 when, in 2005, he <a href="https://www.vanityfair.com/news/politics/2005/07/deepthroat200507">acknowledged</a> through his family’s lawyer that he had been Woodward’s source after all.</p>
<p>It’s small wonder that the heroic-journalist myth still defines popular understanding of Watergate. Other than Woodward and Bernstein, no personalities prominent in Watergate were the subjects of a bestselling memoir, the inspiration for a star-studded motion picture, and the protectors of a mythical source who eluded conclusive identification for decades.</p><img src="https://counter.theconversation.com/content/183290/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>W. Joseph Campbell does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Washington Post reporters Carl Bernstein and Bob Woodward broke stories about the Watergate scandal that helped unravel Richard Nixon’s presidency. But they were not the sole force to bring him down.W. Joseph Campbell, Professor of Communication Studies, American University School of CommunicationLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1844162022-06-10T03:52:21Z2022-06-10T03:52:21ZJan. 6 hearing gives primetime exposure to violent footage and dramatic evidence – the question is, to what end?<figure><img src="https://images.theconversation.com/files/468155/original/file-20220610-29204-p73uas.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C4479%2C2836&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A video image shows the U.S. Capitol grounds being breached as the House Jan. 6 committee holds its first public hearing. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotInvestigation/89130aa8a0c34291b9208f0bff7e05da/photo?Query=capitol%20hearing%20committee&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=42515&currentItemNo=90">Mandel Ngan/Pool via AP</a></span></figcaption></figure><p><em>A violent mob of Trump supporters <a href="https://www.nytimes.com/spotlight/us-capitol-riots-investigations">attacked the U.S. Capitol building on Jan. 6, 2021</a>, intent on disrupting a joint session of Congress that was meeting to count electoral votes and declare Democrat Joe Biden the winner of the 2020 presidential election.</em></p>
<p><em>They did not succeed in preventing Biden’s certification as president, but <a href="https://www.nytimes.com/2022/01/05/us/politics/jan-6-capitol-deaths.html">seven people died in the attack and its immediate aftermath and around 150 police</a> were attacked and injured.</em></p>
<p><em>That event did not take place in a vacuum. For months, President Donald Trump had maintained that if <a href="https://www.politico.com/news/2020/09/24/trump-casts-doubt-2020-election-integrity-421280">he lost his bid for re-election, it would be the result of fraud</a>. His fictional claims of victory were <a href="https://apnews.com/article/donald-trump-michael-pence-electoral-college-elections-health-2d9bd47a8bd3561682ac46c6b3873a10">repeatedly disproven</a> throughout the post-election period.</em></p>
<p><em>The first public hearing of the <a href="https://january6th.house.gov/">House Select Committee to Investigate the January 6 Attack on the United States Capitol</a> took place on June 9, 2022. It began the process of revealing what the committee has learned so far about the planning and carrying out of the attack on American democracy, and the role Trump played in it.</em></p>
<p><em>“Our work must do much more than look backwards,” said committee chairman, U.S. Rep. Bennie Thompson of Mississippi. “Because our democracy remains in danger.” We asked three scholars to watch the hearing and respond.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/468154/original/file-20220610-8276-pldibp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a blue jacket and wearing glasses is talking at a large desk in front of the American flag; next to her is a man in a suit and tie." src="https://images.theconversation.com/files/468154/original/file-20220610-8276-pldibp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/468154/original/file-20220610-8276-pldibp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/468154/original/file-20220610-8276-pldibp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/468154/original/file-20220610-8276-pldibp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/468154/original/file-20220610-8276-pldibp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/468154/original/file-20220610-8276-pldibp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/468154/original/file-20220610-8276-pldibp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Committee Vice Chair Liz Cheney, R-Wyo., gives her opening remarks as Committee Chairman Rep. Bennie Thompson, D-Miss., left, looks on.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXCapitolRiotInvestigation/b4550fce3a2341afb40b9fc165d7eb61/photo?Query=cheney&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=2331&currentItemNo=26">AP Photo/J. Scott Applewhite</a></span>
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<p></p><hr><p></p>
<h2>Theatrical? Yes, but also substantive</h2>
<p><strong>Claire Leavitt, visiting assistant political science professor, Grinnell College</strong></p>
<p>First, let’s be realistic about the scope of the committee’s investigation. Expert observers have said it is <a href="https://www.nytimes.com/2022/04/10/us/politics/jan-6-trump-criminal-referral.html">unlikely that it will result in criminal charges against Trump</a> or <a href="https://www.politico.com/news/2022/06/09/housse-democrats-jan-6-2024-00038305">increase Democrats’ prospects in the November midterms</a>.</p>
<p>But what viewers saw is perhaps even more significant – it was history being written in real time. These hearings will inform future history textbooks, movies and novels that depict the first non-peaceful transfer of power in American history. </p>
<p>The first of several hearings planned in the coming weeks was theatrical and slickly produced. Former ABC News President <a href="https://www.axios.com/2022/06/06/jan-6-committee-adviser-james-goldston">James Goldston</a> is advising the committee and helping to maximize viewership, producing the hearings <a href="https://www.nytimes.com/2022/06/09/us/the-committee-hired-a-tv-executive-to-produce-the-hearings-for-maximum-impact.html">like a mini-drama</a>. </p>
<p>Speakers of the evening session, including committee vice-chair U.S. Rep. Liz Cheney, spliced their comments with violent, new footage from the Capitol attacks.</p>
<p>But we should not mistake theatrics for lack of substance.</p>
<p>Both Cheney and committee chair Bennie Thompson peppered their statements with extensive primary evidence, including video testimony from top Trump administration figures, including Ivanka Trump. This, it would appear, was to strengthen the case that the evidence being presented was nonpartisan. </p>
<p>“I repeatedly told the president in no uncertain terms that I did not see evidence of fraud,” Trump’s former Attorney General William Barr said in one interview.</p>
<p>In another exchange presented during the hearing, Greg Jacob, former counsel to Vice President Mike Pence, wrote in an email to Trump’s lawyer John Eastman: “<a href="https://twitter.com/meghanncuniff/status/1499221495968530434?lang=en">Thanks to your bullshit, we are under siege</a>.”</p>
<p>The committee’s first witness, Capitol police officer Caroline Edwards, was a smart choice: <a href="https://news.gallup.com/poll/1597/confidence-institutions.aspx">Far more Americans trust the police than Congress</a>.</p>
<p>Edwards detailed how she suffered a concussion after rioters pushed a bike rack against her and she fell on a stairway. She regained consciousness, and then continued to push people back, as they “started overpowering us,” she recalled. </p>
<p>Edwards and another witness, documentary filmmaker Nick Quested, may not be the big names <a href="https://www.politico.com/news/2022/06/08/brad-raffensperger-testify-jan-6-committee-00038325">slated to testify at future hearings</a>. </p>
<p>But neither appeared to have political axes to grind, and both exuded a highly valuable political commodity: likability. </p>
<figure class="align-center ">
<img alt="A solemn woman and man stand and raise their right hand as they are sworn in to testify." src="https://images.theconversation.com/files/468147/original/file-20220610-27901-oin2ra.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/468147/original/file-20220610-27901-oin2ra.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=377&fit=crop&dpr=1 600w, https://images.theconversation.com/files/468147/original/file-20220610-27901-oin2ra.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=377&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/468147/original/file-20220610-27901-oin2ra.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=377&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/468147/original/file-20220610-27901-oin2ra.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=474&fit=crop&dpr=1 754w, https://images.theconversation.com/files/468147/original/file-20220610-27901-oin2ra.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=474&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/468147/original/file-20220610-27901-oin2ra.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=474&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">U.S. Capitol Police Officer Caroline Edwards and documentary filmmaker Nick Quested gave firsthand accounts of the Jan. 6 attack.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/capitol-police-officer-caroline-edwards-and-documentary-news-photo/1241207292?adppopup=true">Jonathan Ernst/Getty Images</a></span>
</figcaption>
</figure>
<p></p><hr><p></p>
<h2>Show, don’t tell</h2>
<p><strong>Mark Satta, assistant professor of philosophy, Wayne State University</strong></p>
<p>The House committee faces the challenge of trying to provide the American public with truthful information about the Jan. 6 attack at a time of <a href="https://www.pewresearch.org/fact-tank/2020/11/13/america-is-exceptional-in-the-nature-of-its-political-divide/">deep partisan division</a> and <a href="https://www.pewresearch.org/politics/2022/06/06/public-trust-in-government-1958-2022/">historically low levels of public trust in government</a>. </p>
<p>Confronted with that reality, the committee seems to have decided upon a smart response: Show, don’t tell.</p>
<p>Rather than simply telling the American public the facts, the panel’s first public hearing focused on showing what former president Donald Trump’s allies and supporters themselves have said and done. They paired that with the testimony of seemingly nonpartisan figures like Capitol police officer Caroline Edwards and documentary filmmaker Nick Quested. </p>
<p>It’s not clear whether these hearings will make a demonstrable difference in the public’s perception of the Jan. 6 attack. Maybe they won’t. Maybe America’s partisan divisions are too deep. </p>
<p>But the committee’s choice to showcase the words and deeds of others is in line with <a href="https://theconversation.com/the-problem-of-living-inside-echo-chambers-110486">philosopher C. Thi Nguyen’s 2019 observation</a> that “the crucial issue right now isn’t what people hear, but whom people believe.”</p>
<p>The committee chose to emphasize the words and actions of figures who Trump supporters and other Republicans would appear inclined to believe, such as Trump’s daughter Ivanka and his former attorney general, William Barr. Importantly, the committee chose to do so not only by reading statements into the record but by showing videos, tweets and text exchanges. The facts were purveyed directly, not interpreted by committee members.</p>
<p>The committee could have told the American public that the mob that stormed the capitol was violent. But they could not have conveyed the gravity of the situation the same way that Edwards did when she testified about her experience on the Jan. 6 attack.</p>
<p>“I was slipping in people’s blood,” <a href="https://www.nytimes.com/live/2022/06/09/us/jan-6-hearings">she said</a>. “I was catching people as they fell. It was carnage. It was chaos … Never in my wildest dreams did I think as a police officer, I would find myself in the middle of a battle.”</p>
<p></p><hr><p></p>
<h2>A multi-front battle</h2>
<p><strong>Ken Hughes, research specialist, University of Virginia</strong></p>
<p>Much like the <a href="https://americanarchive.org/special_collections/watergate">televised Watergate hearings</a> half a century ago, the Jan. 6 committee hearings are essential. </p>
<p>But <a href="https://www.usatoday.com/story/news/politics/2022/06/09/january-6-committee-hearing-live-updates/7529743001/">an avalanche of evidence</a> against a president wasn’t enough to secure the republic then, and it isn’t now. </p>
<p>During the Watergate era, congressional Republicans didn’t hold the president accountable <a href="https://theconversation.com/trumps-smoking-gun-tape-is-worse-than-nixons-but-congressional-republicans-have-less-incentive-to-do-anything-about-it-152643">until they feared that a majority of American voters would hold them accountable</a> for failing to do so. </p>
<p>Long before <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/080974-3.htm">Richard M. Nixon resigned in August 1974</a>, we saw televised congressional hearings that revealed evidence of <a href="https://www.govinfo.gov/content/pkg/GPO-HPREC-DESCHLERS-V3/html/GPO-HPREC-DESCHLERS-V3-5-5-2.htm">presidential high crimes</a>, <a href="https://www.pbs.org/newshour/show/woodward-and-bernstein-reflect-on-the-parallels-between-watergate-and-the-capitol-attack">heroic investigative journalism</a> and numerous criminal investigations, prosecutions and <a href="https://watergate.info/analysis/casualties-and-convictions">convictions</a>. </p>
<p>None of it was enough, as long as Republicans were afraid that their primary voters would punish them if they didn’t support the president. </p>
<p>Once their primaries were behind them, these same politicians grew afraid that general election voters, the American majority, would punish them for continuing to give the president their support, even when his high crimes were evident. </p>
<p>The revelation of the “<a href="https://millercenter.org/the-presidency/secret-white-house-tapes/smoking-gun">smoking gun” tape</a> in August of 1974 was the occasion for Nixon’s resignation, not the cause. </p>
<p>Republicans abandoned the president then because they realized that the majority of voters were abandoning them.</p>
<p>What’s different in this era is that <a href="https://www.theatlantic.com/ideas/archive/2021/04/how-stop-minority-rule-doom-loop/618536/">Republican political elites</a> calculate that they don’t have to serve the majority.</p>
<p>Constitutional provisions designed to protect minority rights – the courts, the Senate and the Electoral College – have become the instruments of minority rule.</p>
<p>Even when the majority votes against them, they can control the White House, the <a href="https://www.cnn.com/2021/07/01/politics/supreme-court-6-3-conservative-liberal/index.html">Supreme Court</a>, the <a href="https://www.dailykos.com/stories/2021/2/23/2013769/-How-minority-rule-plagues-Senate-Republicans-last-won-more-support-than-Democrats-two-decades-ago">Senate</a> and, thanks to <a href="https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained">gerrymandering at the state level</a>, the <a href="https://www.brennancenter.org/our-work/research-reports/extreme-gerrymandering-2018-midterm">House of Represenatives</a>. </p>
<p>That’s why the struggle to preserve the republic is a multi-front battle, being fought out not only at the federal level, but in <a href="https://www.nytimes.com/2022/06/05/us/politics/america-first-secretary-of-state-candidates.html">state</a> races and in <a href="https://www.politico.com/news/2022/06/01/gop-contest-elections-tapes-00035758">polling places</a> where votes are counted and certified.</p><img src="https://counter.theconversation.com/content/184416/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy. </span></em></p><p class="fine-print"><em><span>Ken Hughes and Mark Satta do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The House committee investigating the Jan. 6, 2021 attack on the US Capitol held its first hearing to present what it has learned during its almost year-long probe. Three scholars analyze the event.Mark Satta, Assistant Professor of Philosophy, Wayne State UniversityClaire Leavitt, Visiting Assistant Professor of Political Science and Policy Studies, Grinnell CollegeKen Hughes, Research Specialist, the Miller Center, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1815482022-06-02T18:56:15Z2022-06-02T18:56:15ZWhat 5 previous congressional investigations can teach us about the House Jan. 6 committee hearings<figure><img src="https://images.theconversation.com/files/466595/original/file-20220601-49081-yb92dg.jpeg?ixlib=rb-1.1.0&rect=10%2C0%2C3652%2C2422&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Chairman of the Senate Watergate Committee Sam Ervin sits with Chief Counsel Sam Dash, Sen. Howard Baker, staffer Rufus Edmiston and others as they listen to a witness during the Watergate hearings. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/chairman-of-the-senate-watergate-committee-sam-ervin-sits-news-photo/576823048?adppopup=true">Wally McNamee/CORBIS/Corbis via Getty Images</a></span></figcaption></figure><p>Public hearings to be held in June by the House committee investigating the Jan. 6, 2021, Capitol insurrection will attempt to <a href="https://www.theguardian.com/us-news/2022/may/23/capitol-attack-panel-public-hearings-trump">answer the question of whether</a> former President Donald Trump and his political allies broke the law in seeking to overturn the 2020 election results.</p>
<p>The Jan. 6 hearings are part of a <a href="https://time.com/5944289/jan-6-commission-history/">long history</a> of congressional investigation.</p>
<p>The <a href="https://www.levin-center.org/congress-first-investigation-general-st-clairs-defeat/">first congressional inquiry</a> occurred in the House in 1792 to investigate Gen. Arthur St. Clair’s role in the U.S. Army’s defeat in the Battle of the Wabash against the tribes of the Northwest Territory. The Senate conducted its <a href="https://www.jstor.org/stable/pdf/3124558.pdf">first official investigation</a> in 1818, looking into Gen. Andrew Jackson’s conduct in the Seminole War.</p>
<p>A look back at five of the most noteworthy congressional investigations since those initial probes suggests that Congress regularly has used its constitutional authority to gather facts and draw public attention to important issues in the country.</p>
<h2>Ku Klux Klan hearings</h2>
<p>In 1871, Congress <a href="https://www.washingtonpost.com/outlook/2021/01/08/1871-provides-roadmap-addressing-wednesdays-pro-trump-insurrection/">established a committee</a> to investigate violence against and intimidation of Black voters in several states.</p>
<p>A year later, the committee produced <a href="https://onlinebooks.library.upenn.edu/webbin/metabook?id=insurrection1872">13 volumes</a> of evidence containing the testimony of over 600 witnesses describing systemic violence – including killings, beatings, lynchings and rapes – committed by the Ku Klux Klan, known also as the KKK. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A drawing depicts a man labeled 'White League' shaking hands with a Ku Klux Klan member over a shield illustrated with an African American couple holding a possibly dead baby. In the background is a man hanging from a tree." src="https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=743&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=743&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=743&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=934&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=934&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=934&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Congress investigated the racist violence of the KKK in 1871.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/resource/cph.3c28619/">Library of Congress</a></span>
</figcaption>
</figure>
<p>Despite extensive media coverage and the wealth of information uncovered by the committee, many Americans at that time <a href="https://www.jstor.org/stable/27919387">still questioned</a> the KKK’s existence.<br>
Such skepticism was supported by the Democratic minority report that accompanied Congress’ investigation. At a time when Democrats represented the party that had supported slavery, their report legitimized the KKK’s actions in undeniably racist language. Segments of the public <a href="https://www.washingtonpost.com/outlook/2022/03/13/what-history-says-about-jan-6-committee-investigation/">adopted</a> the bigoted language and ideas contained in the minority report for decades to come.</p>
<h2>Teapot Dome scandal</h2>
<p>In 1922, news broke that President Warren G. Harding’s administration had secretly leased federal oil fields to political allies. At the time, these no-bid contracts were valued at around <a href="https://www.usnews.com/news/articles/2008/01/11/bought-off-by-big-oil?context=amp">$200 million</a> – the equivalent of over $3 billion today.</p>
<p>The contracts were awarded by <a href="https://www.britannica.com/event/Teapot-Dome-Scandal">Secretary of the Interior Albert Fall</a>, a former senator and a friend of the president’s. </p>
<p>Congress opened an investigation into the matter, <a href="https://www.upi.com/Archives/1924/01/22/Senate-Committee-to-use-all-legal-powers-to-investigate-Teapot-Dome/8404631771198/">and a UPI news story said</a> on Jan. 22, 1924, “The assistance of Department of Justice agents, United States marshals and the federal courts will be invoked if necessary, senators said, to force the truth from reluctant witnesses.” </p>
<p>As a result of the investigation, Fall resigned and was later convicted of bribery. He was the <a href="https://millercenter.org/president/harding/essays/fall-1921-secretary-of-the-interior">first former Cabinet official</a> in history to be sentenced to prison because of misconduct in office.</p>
<p>Harding is <a href="http://content.time.com/time/specials/packages/article/0,28804,1879648_1879646_1879696,00.html">considered</a> to be one of the country’s worst presidents, in part because of the scandal and corruption brought to light by Congress’ investigation. </p>
<h2>Organized crime and the Kefauver Committee</h2>
<p>In 1950, Congress formed a special committee <a href="https://catalog.archives.gov/id/10449541">in response</a> to a series of news articles suggesting that organized crime was corrupting many local government officials. It was referred to as the Kefauver Committee after its chairman, Democratic Senator Estes Kefauver of Tennessee. The committee launched an investigation, traveling to 14 major cities in the process.</p>
<p>The committee’s hearings rank among the <a href="https://www.senate.gov/about/powers-procedures/investigations/kefauver.htm">most widely viewed congressional investigations</a> in history. It is estimated that <a href="https://www.smithsonianmag.com/history/the-senator-and-the-gangsters-69770823/">90% of televisions</a> in America were tuned in to the hearings.</p>
<p>In part, what made the investigation such good TV was the <a href="https://www.senate.gov/about/resources/pdf/kefauver-committee-full-citations.pdf">cast of characters</a> subpoenaed to testify. Mobsters, their girlfriends, former elected officials and their lawyers paraded into the hearings, all captured on live television.</p>
<p>Not all witnesses complied with the subpoenas. In fact, the Senate approved <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal51-889-29670-1406711">45 contempt of Congress citations</a> in 1951 alone. <a href="https://www.pbs.org/wgbh/americanexperience/features/lasvegas-kefauver/">Litigation over witness noncompliance continued</a> in most cases even after the committee issued its over 11,000-page final report. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowded room where a handful of men are sitting at a raised desk, while one woman talks in the audience" src="https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=464&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=464&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=464&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=584&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=584&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=584&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Virginia Hill Hauser, onetime girlfriend of mobster Bugsy Siegel, talks as members of the Kefauver Senate Crime Investigating Committee listen to her testimony during interstate crime probe hearings at a federal courthouse in New York City on March 15, 1951.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirginiaHillHauser/86b0ef78e34f4517aa4b75dc64b0bb6e/photo?Query=Kefauver%20committee&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=65&currentItemNo=15">AP Photo</a></span>
</figcaption>
</figure>
<h2>Watergate</h2>
<p>In 1973, after seven men from President Richard Nixon’s reelection campaign broke into the headquarters of the Democratic National Committee, <a href="https://www.levin-center.org/the-watergate-hearings/">the Senate voted 77-0</a> to establish a committee to investigate the break-in.</p>
<p>Throughout the investigation, President Nixon <a href="https://www.senate.gov/about/powers-procedures/investigations/watergate.htm">refused to cooperate</a> with the committee’s requests for information and directed his aides to do the same. He claimed <a href="https://constitutioncenter.org/blog/anniversary-of-united-states-v-nixon">executive privilege</a> gave him the right to refuse to hand over White House records, including audiotapes, and <a href="https://www.washingtonpost.com/history/2022/02/07/presidential-records-act-trump-nixon/">planned</a> for many of them to be destroyed. </p>
<p>The battle between the president and Congress went to court and, <a href="https://www.washingtonpost.com/history/2019/10/03/inside-supreme-court-ruling-that-made-nixon-turn-over-his-watergate-tapes/">hours before</a> the House was scheduled to start debating whether to impeach him, the Supreme Court <a href="https://supreme.justia.com/cases/federal/us/418/683/">ruled</a> against Nixon.</p>
<p>The tapes showed Nixon had, despite his denials, taken part in the cover-up. Nixon lost the support of prominent Republicans in Congress, and he resigned shortly thereafter to <a href="https://www.history.com/this-day-in-history/nixon-resigns">avoid impeachment</a>. </p>
<h2>Intelligence community and the Church Committee</h2>
<p>In addition to revealing presidential misconduct, the Watergate Committee investigation found evidence that the U.S. intelligence community was conducting <a href="https://www.senate.gov/about/powers-procedures/investigations/church-committee.htm">potentially unconstitutional</a> domestic operations, including spying on U.S. citizens. </p>
<p>Then, in 1974, The New York Times published an <a href="https://www.nytimes.com/1974/12/22/archives/huge-cia-operation-reported-in-u-s-against-antiwar-forces-other.html">extensive investigation</a> by reporter Seymour M. Hersh suggesting that the CIA maintained at least 10,000 intelligence files on U.S. citizens.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men sitting at a table, one holding up an oddly shaped gun." src="https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=373&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=373&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=373&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=469&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=469&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=469&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chairman Frank Church, D-Idaho, of the Senate Intelligence Committee, displays a poison dart gun Sept. 17, 1975, as Co-Chairman John G. Tower, R-Texas, looks at the weapon during the panel’s probe of the Central Intelligence Agency.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CHURCHTOWER/b870744467e5da11af9f0014c2589dfb/photo?Query=Church%20Committee%20hearing&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=82&currentItemNo=9">AP Photo</a></span>
</figcaption>
</figure>
<p>In response, Congress established a special committee to investigate. The committee’s <a href="https://www.levin-center.org/frank-church-and-the-church-committee/">16-month inquiry</a> exposed the attempted assassinations of foreign political leaders, experiments conducted on U.S. citizens, and covert operations to recruit journalists to monitor private citizens’ communications and to spread propaganda over the media. </p>
<p>The committee found that <a href="https://www.senate.gov/about/powers-procedures/investigations/church-committee.htm">every presidential administration</a> from Franklin D. Roosevelt to Richard Nixon had abused its authority. </p>
<p>“Intelligence agencies have undermined the constitutional rights of citizens,” <a href="https://www.intelligence.senate.gov/resources/intelligence-related-commissions">the final report concluded</a>, “primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied.”</p>
<h2>Mainstream oversight</h2>
<p>A few common themes run throughout these five noteworthy congressional investigations. </p>
<p>First, as the legacy of the Church Committee suggests, public hearings help provide a layer of <a href="https://www.washingtonpost.com/news/wonk/wp/2013/06/27/in-the-1970s-congress-investigated-intelligence-abuses-time-to-do-it-again/">transparency</a> to government.</p>
<p>Congress and the media can be <a href="https://press.princeton.edu/books/hardcover/9780691171852/investigating-the-president">allies</a> in investigation. Investigative reporting like in the work that revealed the <a href="https://www.newspapers.com/clip/33493758/wall-street-journal-reports-on-sinclair/">Teapot Dome scandal</a> and <a href="https://www.npr.org/2014/06/13/321316118/40-years-on-woodward-and-bernstein-recall-reporting-on-watergate">Watergate</a> can lay the groundwork for congressional probes. And media coverage of proceedings like the <a href="https://www.senate.gov/about/resources/pdf/kefauver-committee-full-citations.pdf">Kefauver Committee’s investigation</a> not only raises public awareness but also puts pressure on federal, state and local government officials to act.</p>
<p>But party can get in the way. In one example, partisan infighting and the Democrats’ rejection of the KKK proceedings hindered Congress’ effectiveness and <a href="https://www.heraldnet.com/opinion/comment-jan-6-panel-must-avoid-fate-of-congress-klan-report/">provided a narrative</a> that helped justify Jim Crow laws and other racist policies.</p>
<p>Similarly, party loyalty led many Republicans to remain <a href="https://fivethirtyeight.com/features/it-took-a-long-time-for-republicans-to-abandon-nixon/">vocal in support of Nixon</a> until the full scope of the president’s actions were revealed through the Watergate investigation.</p>
<p>These moments in history also illustrate the importance of examining elected officials’ political support networks. </p>
<p>When President Harding assumed office, he placed <a href="https://www.politico.com/magazine/story/2017/06/07/the-greatest-hearings-in-american-history-215237/">loyal allies</a> in government positions. While these allies helped reinforce Harding’s pledge to reorganize government and “<a href="https://millercenter.org/issues-policy/us-domestic-policy/making-teapot-dome-scandal-relevant-again">return to normalcy</a>,” they also perpetuated corruption. </p>
<p>Likewise, the Watergate investigation prompted <a href="https://www.vanityfair.com/news/2022/02/why-did-nixons-team-order-watergate-break-in-in-the-first-place">criminal charges</a> against 69 people, including two Cabinet officials. Additionally, dozens of major corporations pleaded guilty to illegally financing Nixon’s reelection campaign.</p>
<p>While the upcoming hearings of the House Jan. 6 investigative committee will be dealing with unprecedented events in American history, the very investigation of these events has strong precedent. Congress has long exercised its power to investigate some of the greatest problems facing the nation. In that way, the upcoming hearings fit squarely into the mainstream of American government oversight.</p><img src="https://counter.theconversation.com/content/181548/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The views expressed in this article are solely the views of the author and not the Carl Levin Center for Oversight and Democracy.</span></em></p>The public hearings of the House Jan. 6 investigative committee will deal with unprecedented events in American history, but the very investigation of these events has strong precedent.Jennifer Selin, Co-director, Washington Office, Carl Levin Center for Oversight and Democracy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1773142022-05-26T12:26:58Z2022-05-26T12:26:58ZHow ‘gate’ became the syllable of scandal<figure><img src="https://images.theconversation.com/files/464833/original/file-20220523-18-ecjk98.jpg?ixlib=rb-1.1.0&rect=2239%2C0%2C4615%2C3113&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A view of the Watergate complex in Washington, D.C.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/view-of-the-watergate-complex-from-the-balcony-at-rise-news-photo/489740234?adppopup=true">John McDonnell/The Washington Post via Getty Images</a></span></figcaption></figure><p>On June 17, 1972, Washington, D.C., police arrested five men for breaking into the headquarters of the Democratic National Committee. Although the administration’s press secretary, Ron Ziegler, dismissed the crime as a “<a href="https://www.nytimes.com/2003/02/11/us/ron-ziegler-press-secretary-to-nixon-is-dead-at-63.html">third-rate burglary</a>,” its scope would grow to consume Richard Nixon’s presidency and then <a href="https://theconversation.com/how-richard-nixons-obsession-with-daniel-ellsberg-and-the-pentagon-papers-sowed-the-seeds-for-the-presidents-downfall-159113">bring it to an end 26 months later</a>.</p>
<p>As with other infamous episodes, such as the <a href="https://www.nytimes.com/1924/08/07/archives/davis-sees-in-oil-big-campaign-issue-says-in-answer-to-butler.html?searchResultPosition=10">Teapot Dome</a> scandal or the <a href="https://www.nytimes.com/1969/07/20/archives/woman-passenger-killed-kennedy-escapes-in-crash-senator-tells-the.html?searchResultPosition=9">Chappaquiddick</a> tragedy, the event would come to be known by the place where it occurred. </p>
<p>But unlike those two precedents, the Watergate Office Building would be immortalized as the catchall term for political scandal.</p>
<p>“Watergate,” in this context, is an example of <a href="https://www.oed.com/public/gatesuffix/the-gate">metonymy</a>. A part – the site of the break-in – comes to stand for the larger whole: the illegal acts committed by Nixon’s administration, as well as the subsequent investigation into them.</p>
<p>Metonymy is a common way in which English is fortified with new vocabulary – think of “the Pentagon” as a stand-in for the U.S. military, or “Hollywood” as a way to refer to the motion picture industry.</p>
<p>What’s unusual about Watergate is that one syllable <a href="https://www.google.com/books/edition/Concise_Encyclopedia_of_Semantics/3_1snsgmqU8C?hl=en&gbpv=1&dq=concise+encyclopedia+of+semantics+%22splinters+become+morphemes%22&pg=PA630&printsec=frontcover">splintered off</a> to become the universally recognized designator for political malfeasance. When boozy government-sponsored parties that broke COVID-19 lockdown rules came to light in the U.K., the scandal quickly became known as “<a href="https://apnews.com/article/boris-johnson-london-government-and-politics-3661df0855d575186e958ec0d10a8537">partygate</a>.” But the syllable has also migrated beyond politics, becoming a tag for wrongdoing of virtually any kind.</p>
<p><a href="https://www.jstor.org/stable/455924?seq=1#metadata_info_tab_contents">Other splinters</a> have also been pressed into service to create new words. For example, “-athon,” from “marathon,” can emphasize an event’s long duration – telethon, dance-a-thon, and hackathon. Similarly, “-aholic,” from “alcoholic,” denotes an addiction: shopaholic, workaholic, sexaholic.</p>
<p>But in terms of sheer productivity, “-gate” has no peer. Wikipedia’s list of -gates has <a href="https://en.wikipedia.org/wiki/List_of_%22-gate%22_scandals_and_controversies">over 260 entries</a>. </p>
<p>During its remarkable career, it has often been wielded as a linguistic cudgel, and few other four-letter strings have such power to stigmatize and to demonize.</p>
<h2>The early years</h2>
<p>A year after the Watergate break-in, the humor magazine National Lampoon referenced “<a href="https://www.cjr.org/analysis/gate_keepers.php">Volgagate</a>” – a fictitious Russian scandal – in its August 1973 issue. This seems to have been the first use of -gate as a generic label for a political scandal.</p>
<p>A month later, Newsweek characterized a scheme to peddle cheap Bordeaux as “<a href="https://www.merriam-webster.com/words-at-play/gate-suffix-scandal-word-history">Winegate</a>.” Its extension to viniculture suggested that -gate might have a life outside of politics.</p>
<p>But the real popularizer of -gate was William Safire, Nixon’s former speechwriter. As a conservative political columnist with The New York Times for over 30 years, Safire created or promoted many such terms. These included <a href="https://www.nytimes.com/1980/07/21/archives/essay-none-dare-call-it-billygate.html?searchResultPosition=1">Billygate</a>, <a href="https://www.nytimes.com/1977/08/11/archives/lancegate.html?searchResultPosition=1">Lancegate</a> and <a href="https://www.nytimes.com/1983/10/06/opinion/essay-briefingate-phase-ii.html?searchResultPosition=1">Briefingate</a> to describe scandals that emerged during Jimmy Carter’s presidency. He also popularized <a href="https://www.jstor.org/stable/pdf/42578225.pdf">Travelgate</a> and <a href="https://www.nytimes.com/1994/03/03/opinion/essay-whitewater-cover-up.html?searchResultPosition=1">Whitewatergate</a> during the Clinton years.</p>
<figure class="align-center ">
<img alt="Man in suit talks on phone." src="https://images.theconversation.com/files/465155/original/file-20220524-25-olohkh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/465155/original/file-20220524-25-olohkh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/465155/original/file-20220524-25-olohkh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/465155/original/file-20220524-25-olohkh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/465155/original/file-20220524-25-olohkh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=528&fit=crop&dpr=1 754w, https://images.theconversation.com/files/465155/original/file-20220524-25-olohkh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=528&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/465155/original/file-20220524-25-olohkh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=528&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">After Nixon resigned, his former speechwriter, William Safire, deployed ‘gate’ as a suffix to describe various scandals that engulfed the Democratic Party.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-is-a-photograph-of-william-safire-president-nixons-news-photo/515395986?adppopup=true">Bettmann/Getty Images</a></span>
</figcaption>
</figure>
<p>These episodes didn’t rise to the seriousness of Watergate, of course. But by making them into -gates, Safire was implying that Democrats could be <a href="https://www.theatlantic.com/politics/archive/2014/01/-gate-or-ghazi-toward-unified-theory-scandal-naming/357053/">just as corrupt</a> as Republicans.</p>
<p>Apart from Safire’s inventions, few episodes from the 1970s to the 1990s were referred to as -gates. Only about 10% of the terms on Wikipedia’s list date from the 20th century. Even major political scandals of the period only occasionally received this epithet.</p>
<p>Consider the Reagan administration’s <a href="https://www.history.com/topics/1980s/iran-contra-affair">scheme</a> to use Iranian arm sales to fund the Nicaraguan Contras. All the attributes for a Watergate-style comparison were present: illegal activity, conspiracy and an attempted cover-up.</p>
<p>Despite this, The New York Times referred to the episode as “<a href="https://www.nytimes.com/1986/12/12/opinion/in-the-nation-two-different-gates.html?searchResultPosition=1">Reagangate</a>” just twice, “<a href="https://www.nytimes.com/1987/01/04/magazine/on-language.html?searchResultPosition=4">Contragate</a>” only 11 times and “<a href="https://www.nytimes.com/1987/08/09/opinion/how-irangate-differs-from-watergate.html?searchResultPosition=1">Irangate</a>” about 100 times. In contrast, the paper used the phrase “<a href="https://www.nytimes.com/1987/01/11/opinion/the-ifancontra-uproar-a-travesty.html?searchResultPosition=30">Iran-Contra</a>” nearly <a href="https://www.nytimes.com/search?query=%22iran-contra%22">6,000 times</a> in its coverage.</p>
<h2>Opening the ‘flood-gates’</h2>
<p>In the new millennium, however, -gate became totally unmoored from politics. </p>
<p>It has been employed to describe kerfuffles in <a href="https://www.theatlantic.com/entertainment/archive/2014/11/watergate-gamergate-and-the-evolution-of-language/382276/">almost every field</a> of human endeavor – sports (<a href="https://www.nytimes.com/article/astros-cheating.html">Astrogate</a>), journalism (<a href="https://www.salon.com/2015/10/17/rathergate_and_the_dark_magic_of_2004_when_the_gop_learned_how_to_subvert_truth_and_alter_political_reality/">Rathergate</a>), technology (<a href="https://www.cultofmac.com/492086/today-apple-history-antennagate-consumer-reports/">Antennagate</a>) and entertainment (<a href="https://www.nytimes.com/2019/03/29/opinion/janet-jackson.html?searchResultPosition=11">Nipplegate</a>).</p>
<p>Already in 2022, hashtags referring to a number of events – such as <a href="https://twitter.com/search?q=slapgate&src=typed_query&f=top">#slapgate</a> and <a href="https://twitter.com/search?q=%23lettergate&src=typed_query">#lettergate</a> – have trended on Twitter. </p>
<p>For those who value precision in language, this as a problem – because if everything is a scandal, then nothing is.</p>
<p>Consider “<a href="https://www.theguardian.com/world/2015/apr/22/new-zealand-prime-minister-john-key-apologises-for-pulling-waitresss-hair">Ponytailgate</a>.” In 2015, New Zealand’s prime minister, over a period of several months, repeatedly tugged on the ponytail of a young café waitress. He persisted despite repeated requests from both the waitress and the prime minister’s wife that he stop. Such behavior is boorish at best. </p>
<p>But does it belong in the same category as events involving corruption, a conspiracy, or a cover-up?</p>
<h2>A pleasing sounding suffix</h2>
<p>It may be that -gate is used because nothing better has come along. Replacement terms have enjoyed only limited popularity.</p>
<p>The splinter “<a href="https://www.theatlantic.com/politics/archive/2014/01/how-to-name-a-scandal-what-is-a-nbsp-gate-and-what-is-a-ghazi/283104/">-ghazi</a>” arose in reference to the 2012 attack on the U.S. diplomatic post in Benghazi, Libya. It was occasionally deployed against the Obama administration. For example, when President Obama wore a <a href="https://www.mrporter.com/en-ch/journal/fashion/president-obama-tan-suit-summer-style-one-memorable-look-1342176">tan suit</a> to a press conference, “<a href="https://www.theatlantic.com/politics/archive/2014/08/no-one-heard-anything-obama-just-said-because-his-tan-suit-was-so-loud/379321/">Beigeghazi</a>” was born. But -ghazi probably failed as a suffix for scandal because it was too much of a mouthful.</p>
<p>This can be seen in the 2014 debate over what to call former New Jersey Gov. Chris Christie’s <a href="https://www.nytimes.com/2016/11/04/nyregion/george-washington-bridge-scandal-what-you-need-to-know.html">lane closure scandal</a>. Should it be “Bridgeghazi” or “Bridgegate” – or even “<a href="http://www.slate.com/articles/news_and_politics/low_concept/2014/01/bridgegate_or_bridgeghazi_chris_christie_s_bridge_scandal_needs_a_name.html">Bridgeaquiddick</a>”? </p>
<p><a href="https://www.nytimes.com/2020/01/14/us/supreme-court-bridgegate.html">Bridgegate</a> won out – undoubtedly because it was shorter and simpler. Resonance also seems to apply for other scandals: “<a href="https://www.nytimes.com/2016/03/04/sports/deflategate-appeal-tom-brady-roger-goodell.html?searchResultPosition=47">Deflategate</a>” simply sounds better than “<a href="https://augustafreepress.com/ballghazi-deflategate/">Ballghazi</a>” as a name for the New England Patriots football scandal.</p>
<h2>One size fits all?</h2>
<p>Not content with its domination of English, -gate has also wormed its way <a href="https://www.asc.ohio-state.edu/joseph.1/publications/1992gate.pdf">into other languages</a>, such as German, Serbo-Croatian, Greek and <a href="https://www.jstor.org/stable/pdf/455461.pdf">Hungarian</a>.</p>
<p>But like most successful trends, the widespread use of -gate has engendered <a href="https://www.washingtonpost.com/lifestyle/style/we-cant-have-a-scandal-without-the--gate/2012/06/10/gJQAfUBNTV_story.html">significant backlash</a>. As with Ponytailgate, many of these coinages fail to differentiate the mundane from the momentous. This invites accusations of <a href="https://www.thenewsminute.com/article/should-journalists-stop-using-gate-reference-every-scandal-21357">journalistic laziness</a>, in which events are merely lumped together rather than analyzed.</p>
<p>In addition, overuse has transformed -gate constructions from the somewhat clever coinages of Safire’s day into the <a href="https://www.chicagotribune.com/news/ct-xpm-2012-05-29-ct-talk-gate-words-manker-0529-20120529-story.html">tired clichés</a> of today. It can also be difficult to tell when a -gate construction <a href="https://mitpress.mit.edu/books/irony-and-sarcasm">is intended ironically</a>, which makes interpretation difficult. </p>
<p>Finally, sometimes shorthand is just too short. “Reagangate” may have failed as a label for Iran-Contra because it wasn’t specific enough. The term could have referred to any of <a href="https://apnews.com/article/9255cf25155fca5abdd58d94388d3e60">several different episodes</a> during Reagan’s eight-year administration.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/465154/original/file-20220524-16-d3848s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Football player signs ball in end zone." src="https://images.theconversation.com/files/465154/original/file-20220524-16-d3848s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/465154/original/file-20220524-16-d3848s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=885&fit=crop&dpr=1 600w, https://images.theconversation.com/files/465154/original/file-20220524-16-d3848s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=885&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/465154/original/file-20220524-16-d3848s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=885&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/465154/original/file-20220524-16-d3848s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1112&fit=crop&dpr=1 754w, https://images.theconversation.com/files/465154/original/file-20220524-16-d3848s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1112&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/465154/original/file-20220524-16-d3848s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1112&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Terrell Owens, during an October 2002 Monday Night Football game, took a Sharpie out of his sock to sign a football after scoring a touchdown.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/san-francisco-49ers-wide-receiver-terrell-owens-signs-a-news-photo/83697304?adppopup=true">Tami Tomsic/Getty Images</a></span>
</figcaption>
</figure>
<p>At the other extreme, the same -gate has been applied to very different controversies. “Sharpiegate” referred to Terrell Owens’ <a href="https://www.sfgate.com/sports/article/The-pen-is-mightier-than-49ers-as-long-as-it-s-2762064.php">signing of a football</a> in 2002. But it was also trotted out for President Donald Trump’s <a href="https://www.theguardian.com/us-news/2019/sep/05/trump-hurricane-dorian-alabama-map-sharpiegate">edit of a map</a> of Hurricane Dorian’s path in 2019. And in 2020, it became associated with <a href="https://www.reuters.com/article/us-usa-election-arizona-sharpie/sharpiegate-allegations-fuel-unproven-claims-of-voter-fraud-in-arizona-idUSKBN27K2QO">allegations of ballot fixing</a> in Arizona.</p>
<p>But even half a century later, -gate is still finding gainful employment in politics. It was used, for example, to tag several Trump scandals, <a href="https://foreignpolicy.com/2019/09/25/why-ukrainegate-is-nothing-like-russiagate-trump/">from Russiagate to Ukrainegate</a>. And President Joe Biden has had to contend with <a href="https://lavocedinewyork.com/en/news/2021/08/22/is-this-a-kabulgate-government-accountability-and-a-story-that-wont-add-up/">Kabulgate</a> and <a href="https://twitter.com/search?q=%23formulagate&src=typed_query&f=top">#formulagate</a>.</p>
<p>No president has resigned since Nixon, arguably in the face of <a href="https://www.politico.com/magazine/story/2018/02/01/46-political-scandals-that-were-worse-than-watergate-216923/">worse scandals</a> than Watergate. </p>
<p>As with the wear and tear on an overused suffix, one has to wonder: Have voters become numb to political scandal, too?</p><img src="https://counter.theconversation.com/content/177314/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger J. Kreuz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many of the coinages fail to differentiate the mundane from the momentous. Has the suffix’s overuse rendered it essentially meaningless?Roger J. Kreuz, Associate Dean and Professor of Psychology, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1758232022-02-09T13:20:42Z2022-02-09T13:20:42ZThe Jan. 6 Capitol attacks offer a reminder – distrust in government has long been part of Republicans’ playbook<p>The Republican National Committee has legitimized the Jan. 6, 2021, Capitol attacks. The RNC declared on Feb. 4, 2022, that the insurrection and preceding events were “<a href="https://www.nytimes.com/2022/02/04/us/politics/republicans-jan-6-cheney-censure.html">legitimate political discourse</a>” — an assertion that Sen. Mitch McConnell <a href="https://www.nytimes.com/2022/02/08/us/politics/republicans-censure-mcconnell.html">soon after countered</a>, saying that it was a “violent insurrection.”</p>
<p>The Justice Department <a href="https://www.nytimes.com/2022/01/18/us/politics/trump-jan-6-riot.html">is investigating</a> former President Donald Trump’s involvement on Jan. 6, when several thousand rioters stormed the U.S. Capitol. The attacks resulted in the deaths of at least <a href="https://www.nytimes.com/2022/01/05/us/politics/jan-6-capitol-deaths.html">seven people</a> and the injury of 150 police officers. </p>
<p>Meanwhile, <a href="https://www.nytimes.com/2022/01/30/us/politics/trump-speech-texas.html">Trump says</a> he will consider pardoning Jan. 6 rioters if he is reelected in 2024, while continuing to lie that the <a href="https://www.pbs.org/newshour/politics/ap-fact-check-on-jan-6-anniversary-trump-sticks-to-election-falsehoods">2020 election was stolen</a>.</p>
<p>It’s the latest step in a long-standing, systemic effort of the Republican Party to sow and capitalize on public distrust.</p>
<p>As political scientists who study the politics of <a href="https://www.routledge.com/Pathways-to-Polling-Crisis-Cooperation-and-the-Making-of-Public-Opinion/Fried/p/book/9780415891424">public opinion</a> and <a href="https://www.loyola.edu/academics/political-science/faculty/harris">congressional rhetoric</a>, we have chronicled American conservatives’ decadeslong strategic use of distrustful rhetoric in our book <a href="http://cup.columbia.edu/book/at-war-with-government/9780231195218">“At War with Government.”</a> </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/444882/original/file-20220207-47158-taxo2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A police officer runs, ducking, with another man - both wearing black suits - across the U.S. House floor." src="https://images.theconversation.com/files/444882/original/file-20220207-47158-taxo2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/444882/original/file-20220207-47158-taxo2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/444882/original/file-20220207-47158-taxo2r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/444882/original/file-20220207-47158-taxo2r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/444882/original/file-20220207-47158-taxo2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/444882/original/file-20220207-47158-taxo2r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/444882/original/file-20220207-47158-taxo2r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A member of the U.S. Capitol Police rushes U.S. Rep. Dan Meuser through the U.S. Capitol House Chamber on Jan. 6, 2021.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/member-of-the-us-capitol-police-rushes-rep-dan-meuser-out-of-the-as-picture-id1236911809?s=2048x2048">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>How distrust can help in politics</h2>
<p>There are a few clear benefits to leveraging distrust as a political tool. </p>
<p>Over the past several decades, Republicans have used distrust to caution voters against opponents in election campaigns and to argue that Democrats’ policy proposals would hurt Americans. Republicans have also sown political distrust toward institutions they did not control – like the presidency – while seeking to empower the same institutions when they were in power.</p>
<p><a href="http://cup.columbia.edu/book/at-war-with-government/9780231551243">Our research</a> shows that distrust has been a particularly powerful resource for Republican politicians as they work to galvanize the conservative base and attract the independent voters they need to win elections.</p>
<h2>History of distrust</h2>
<p>In the 1950s, Republican Sen. Joe McCarthy <a href="https://millercenter.org/the-presidency/educational-resources/age-of-eisenhower/mcarthyism-red-scare">conducted a series</a> of high-profile probes into U.S. government officials’ potential Communist Party affiliations. McCarthy and others used smear tactics to delegitimize political opponents, painting them as untrustworthy.</p>
<p>Public <a href="https://www.pewresearch.org/politics/2021/05/17/public-trust-in-government-1958-2021/">trust in government dropped precipitously</a>, from 77% in October 1964 to 36% in December 1974. </p>
<p>Democrats began championing civil rights in the early 1960s. Republicans then adopted an electoral plan known as the <a href="https://global.oup.com/academic/product/the-long-southern-strategy-9780190265960?cc=us&lang=en&">Southern strategy</a> around 1968, wooing white Southerners who opposed Democrats’ progressive direction on civil rights and social issues and who championed states’ power.</p>
<p>Various presidential administrations’ <a href="https://www.nytimes.com/2021/06/09/us/pentagon-papers-vietnam-war.html">secrecy about the Vietnam War</a>, as well as former President Richard Nixon’s <a href="https://millercenter.org/the-presidency/educational-resources/watergate/watergate-aftermath">involvement in the Watergate scandal</a>, furthered political distrust. </p>
<p>Left-wing American politicians have also capitalized on government distrust, especially regarding national security. <a href="https://wwnorton.com/books/9780393634044">Historian Paul Sabin</a> attributes distrust in government to such liberal reformers as Ralph Nader, who criticized cozy relationships between government and business. </p>
<p>But it is largely Republicans who have strategically promoted political distrust. Republicans have also used distrust to rally against Democrats’ health policy proposals. </p>
<p>Working for the American Medical Association in 1961, 20 years before his election, for example, former President Ronald Reagan <a href="https://www.youtube.com/watch?v=AYrlDlrLDSQ">said that the proposal</a> that would become Medicare was “one of the traditional methods of imposing socialism or statism on a people.” </p>
<p>Newt Gingrich’s 1990s fight against former President Bill Clinton and House Democrats marked a turning point, as <a href="https://www.ajc.com/news/local-govt--politics/gingrich-language-set-new-course/O5bgK6lY2wQ3KwEZsYTBlO/">Gingrich encouraged his fellow Republicans</a> to use hyperbolic and highly personal attacks against Democratic colleagues, casting them as undeserving of citizens’ trust. </p>
<p>An early 1990s campaign memo from Gingrich advised candidates to define “the Democrats as the party of radical left-wing activists, unionized bureaucracies, and <a href="http://cup.columbia.edu/book/at-war-with-government/9780231195218">corrupt political machines</a>.”</p>
<p>When arguing against Clinton’s proposed health reform, Republicans used phrases like <a href="http://cup.columbia.edu/book/at-war-with-government/9780231195218">“Gestapo medicine”</a> to elicit fear of a destructive government. </p>
<p>In 2009 and 2010, opponents of the Affordable Care Act raised the prospect of government <a href="https://www.npr.org/2017/01/10/509164679/from-the-start-obama-struggled-with-fallout-from-a-kind-of-fake-news">“death panels”</a> making life-and-death decisions for citizens. <a href="https://www.politifact.com/article/2010/dec/16/lie-year-government-takeover-health-care/">A Republican strategist</a> urged Republican leaders to characterize the health care plan as a “government takeover” which “like coups … lead to dictators and a loss of freedom.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/444885/original/file-20220207-69470-1dijfua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit speaks into microphones in a black-and-white photo." src="https://images.theconversation.com/files/444885/original/file-20220207-69470-1dijfua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/444885/original/file-20220207-69470-1dijfua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=789&fit=crop&dpr=1 600w, https://images.theconversation.com/files/444885/original/file-20220207-69470-1dijfua.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=789&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/444885/original/file-20220207-69470-1dijfua.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=789&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/444885/original/file-20220207-69470-1dijfua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=991&fit=crop&dpr=1 754w, https://images.theconversation.com/files/444885/original/file-20220207-69470-1dijfua.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=991&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/444885/original/file-20220207-69470-1dijfua.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=991&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Republican Sen. Joseph McCarthy led a campaign in the 1950s to put government officials on trial for alleged Communist Party ties.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/republican-senator-joseph-mccarthy-led-a-campaign-to-put-prominent-picture-id615291718?s=2048x2048">Corbis via Getty Images</a></span>
</figcaption>
</figure>
<h2>‘He had everyone enraged’</h2>
<p>The echoes of more than a half-century of anti-government rhetoric spilled over on Jan. 6. </p>
<p>Trump’s “drain the swamp” <a href="https://www.tamupress.com/book/9781623499068/demagogue-for-president/">rhetoric</a>, along with his claim that <a href="https://link.springer.com/article/10.1007/s12115-020-00526-y">elections are rigged</a>, fueled people’s long-held suspicions toward government. </p>
<p>In a New York federal district court in January 2021, one of the accused Jan. 6 insurrectionists defended his participation in the attack, saying that he had “<a href="https://www.nytimes.com/2021/01/13/nyregion/capitol-rioter-new-york.html">tired of the corruption of government</a>.” </p>
<p>Some protesters present on Jan. 6 were involved in far-right anti-government groups, such as the <a href="https://www.adl.org/resources/backgrounders/oath-keepers">Oath Keepers</a> and <a href="https://www.washingtonpost.com/local/legal-issues/three-percenters-charged-conspiracy-capitol-riot/2021/06/10/f84091e6-c9ec-11eb-81b1-34796c7393af_story.html">Three Percenters</a>. </p>
<p>Oath Keepers founder Stewart Rhodes wrote on the messaging app Signal two days after the November 2020 election that the group’s members shouldn’t accept the election results, saying, “<a href="https://www.justice.gov/opa/press-release/file/1462481/download">We aren’t getting through this without a civil war</a>.” </p>
<p>Other insurrectionists rationalized their actions by citing Trump’s false claims in court. </p>
<p>Some rioters, for example, defended themselves against trespassing charges by saying that Trump <a href="https://www.reuters.com/article/us-usa-trump-capitol-defense/he-invited-us-accused-capitol-rioters-blame-trump-in-novel-legal-defense-idUSKBN2A219E">“invited”</a> them to the Capitol. </p>
<p>One accused insurrectionist, Zachary Wilson, said, “I was caught up in President Trump telling everybody the election was stolen. <a href="https://www.rawstory.com/capitol-riot-sentences-2656496544/">He had everyone enraged</a>.” </p>
<p>Trump’s promotion of distrust about the election results proved legally dangerous to citizens who were moved by his rhetoric. </p>
<p>U.S. District Judge Amit Mehta told one Jan. 6 defendant that he was “a pawn” of those who lied about the 2020 election results. The people who believed the lie <a href="https://www.cnn.com/2021/11/19/politics/judge-blames-trump-riot/index.html">“are the ones paying the [legal] consequences,” Mehta said</a></p>
<p>Distrust in the American election system has grown since the Jan. 6 attacks. More than 3 in 10 Americans believe the nation’s system is fundamentally unsound, according to a <a href="https://www.monmouth.edu/polling-institute/reports/monmouthpoll_us_111521/">November 2021 Monmouth University poll</a>, up from 22% in January 2021. That finding fits with the longer-term GOP effort to weaponize political distrust.</p>
<p>[<em>The Conversation’s Politics + Society editors pick need-to-know stories.</em> <a href="https://memberservices.theconversation.com/newsletters/?nl=politics&source=inline-politics-need-to-know">Sign up for Politics Weekly</a>.]</p><img src="https://counter.theconversation.com/content/175823/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Both authors received support for portions of the research for their book, "At War With Government: How Conservatives weaponized Distrust from Goldwater to Trump" (2021, Columbia University Press). Amy Fried received funding from the University of Maine for several archival visits and to support research assistants at several other archives. Douglas B. Harris received funding from the Everett McKinley Dirksen Congressional Research Center, the Carl Albert Congressional Research & Studies Center at the University of Oklahoma, and the Loyola University Summer Research Grant Program.</span></em></p><p class="fine-print"><em><span>Amy Fried does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Republican Party has a decadeslong relationship with using distrust to incite its base and draw in more supporters – the Jan. 6 Capitol attacks just offer the latest example of this tactic.Amy Fried, John M. Nickerson Professor of Political Science, University of MaineDouglas B. Harris, Professor of political science, Loyola University MarylandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1746482022-01-11T13:34:27Z2022-01-11T13:34:27ZProsecuting Trump would inevitably be political – and other countries have had mixed success in holding ex-presidents accountable<figure><img src="https://images.theconversation.com/files/440123/original/file-20220110-27-1uvbc7i.jpeg?ixlib=rb-1.1.0&rect=9%2C9%2C3086%2C2051&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A man protesting in New York City one year after the violent insurrection in Washington, D.C. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/participant-holding-a-sign-reading-indict-donald-trump-at-news-photo/1237580013?adppopup=true">Erik McGregor/LightRocket via Getty Images</a></span></figcaption></figure><p>When Attorney General Merrick Garland <a href="https://www.washingtonpost.com/national-security/garland-jan-6-investigate-crimes/2022/01/05/3c11854a-6db4-11ec-a5d2-7712163262f0_story.html">said on Jan. 5, 2022, that he would prosecute anyone involved in the Capitol riots</a>, he was not only laying out his approach to the sprawling investigation of that attack. He also appeared to be responding to a growing number of people who have <a href="https://theweek.com/donald-trump/1008120/a-plea-to-merrick-garland-for-the-future-of-our-republic">pressured him to announce he would criminally charge former President Donald Trump</a> for the role he played in the day’s events.</p>
<p>“The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy,” <a href="https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-first-anniversary-attack-capitol">said Garland</a>. “We will follow the facts wherever they lead.”</p>
<p><a href="https://www.theatlantic.com/ideas/archive/2020/10/case-criminally-investigating-ex-president/616804/">No U.S. ex-president has ever been criminally charged</a>. </p>
<p><a href="https://www.economist.com/europe/2021/03/01/nicolas-sarkozys-jail-sentence-shocks-frances-political-class">Prosecuting current or past top officials</a> accused of illegal conduct seems like an obvious decision for a democracy – everyone should be held accountable and subject to the rule of law.</p>
<p>But there are consequences to prosecutions of these officials – not just for them, but for their countries. </p>
<p>Presidents and prime ministers aren’t just anyone. </p>
<p>They are chosen by a nation’s citizens or their parties to lead. They are often popular, sometimes revered. So judicial proceedings against them are <a href="https://cpb-us-w2.wpmucdn.com/voices.uchicago.edu/dist/5/539/files/2017/05/AJPS-2021_Pol-Scandal.pdf">inevitably perceived as political</a> and become divisive. </p>
<h2>Destabilizing prosecutions</h2>
<p>Other countries’ former presidents are <a href="https://www.jstor.org/stable/24758118?seq=1">being investigated, prosecuted</a> and even jailed worldwide.</p>
<p>In Bolivia, ex-President Jeanine Áñez was <a href="https://www.cnn.com/2021/03/13/americas/bolivia-arrested-interim-president/">arrested on</a> terrorism, conspiracy and sedition charges on March 13, 2021, and is headed to trial soon. A week before, former French President <a href="https://apnews.com/article/nicolas-sarkozy-convincted-corruption-france-6ee89cb03ba8f3888ac64447ebf61f28">Nicolas Sarkozy was sentenced to prison</a> for corruption and influence peddling. </p>
<p>Israel’s former Prime Minister <a href="https://www.nytimes.com/2021/02/08/world/middleeast/benjamin-netanyahu-trial.html">Benjamin Netanyahu</a> is currently on trial for corruption. Jacob Zuma, the <a href="https://www.ft.com/content/a8b04d55-e9df-425b-b461-bdccceff9dff">former president of South Africa, is in a prolonged fight against corruption charges</a> and <a href="https://www.cnn.com/2021/12/15/africa/south-africa-zuma-prison-intl/index.html">was sentenced to 15 months in jail for contempt of court</a>. </p>
<p>If the prosecution of past leaders is brought by a political rival, it can lead to a cycle of prosecutorial retaliation. Despite the independence of the U.S. Justice Department, headed by Garland, a prosecution of Trump could be seen as political since Garland was appointed by President Joe Biden.</p>
<p>This is partly why <a href="https://www.fordlibrarymuseum.gov/library/document/0019/4520699.pdf">U.S. President Gerald Ford pardoned</a> Richard Nixon, his predecessor, in 1974. Despite clear evidence of criminal wrongdoing in the Watergate scandal, <a href="https://www.fordlibrarymuseum.gov/library/document/0019/4520699.pdf">Ford feared</a> the country “would needlessly be diverted from meeting (our) challenges if we as a people were to remain sharply divided over” punishing the ex-president. </p>
<p>Public reaction <a href="https://www.nytimes.com/1974/09/09/archives/reaction-to-pardon-of-nixon-is-divided-but-not-entirely-along-party.html">at the time</a> was divided along party lines. But many people <a href="https://constitutioncenter.org/blog/the-nixon-pardon-in-retrospect">now see</a> absolving Nixon as necessary to <a href="https://www.abebooks.com/book-search/title/time-to-heal/author/gerald-ford/signed/">heal the U.S.</a></p>
<p><a href="https://sites.uw.edu/uwpoliticaleconomy/">Our research</a> on prosecuting world leaders finds that both sweeping immunity and overzealous prosecutions can undermine democracy. But such prosecutions pose different risks for mature democracies like France than they do in nascent democracies like Bolivia. </p>
<h2>Mature democracies</h2>
<p>Strong democracies are usually competent enough – and the judicial system independent enough – to go after <a href="https://theconversation.com/why-trumps-challenges-to-democracy-will-be-a-big-problem-for-biden-152218">politicians who misbehave</a>, including top leaders. Sarkozy is France’s second modern president to be found guilty of corruption, after <a href="https://www.bbc.com/news/world-europe-16194089">Jacques Chirac in 2011</a>. The country didn’t fall apart after Chirac’s conviction.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Sarkozy, wearing a face mask, walks through a glass building, trailed by another man in a suit. A police officer salutes." src="https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Former French President Nicolas Sarkozy leaves court after being found guilty of corruption and influence peddling, March 1, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-french-president-nicolas-sarkozy-leaves-court-after-news-photo/1304713844?adppopup=true">Kiran Ridley/Getty Images</a></span>
</figcaption>
</figure>
<p>In mature democracies, prosecutions can <a href="https://www.washingtonpost.com/news/worldviews/wp/2017/05/10/south-korea-just-showed-the-world-how-to-do-democracy/">hold leaders accountable</a> and solidify the rule of law. South Korea <a href="https://www.economist.com/asia/2020/01/16/south-koreas-president-curbs-the-power-of-prosecutors">investigated and convicted</a> five former presidents starting in the 1990s, a wave of political prosecutions that culminated in the <a href="https://www.bbc.com/news/world-asia-37971085">2018 impeachment of President Park Geun-hye</a>. </p>
<p>But even in mature democracies, prosecutors or judges can weaponize prosecutions. </p>
<p><a href="https://www.politico.eu/article/nicolas-sarkozy-jail-sentence-corruption/">Some observers say</a> the three-year prison sentence handed down to France’s Sarkozy – whose corruption conviction involves kickbacks and an attempt to bribe a magistrate – was too harsh. </p>
<h2>Overzealous prosecution versus rule of law</h2>
<p>Overzealous political prosecution is more likely, and potentially more damaging, in emerging democracies where courts and other public institutions may be <a href="https://journals.sagepub.com/doi/abs/10.1177/106591290605900306">insufficiently independent from politics</a>. The weaker and more beholden the judiciary, the easier it is for leaders to exploit the system, either to expand their own power or to take down an opponent.</p>
<p>Brazil embodies this dilemma. </p>
<p>Ex-President <a href="https://www.reuters.com/article/us-brazil-politics-lula/brazil-judge-annuls-lulas-convictions-opens-door-to-2022-run-idUSKBN2B02F0">Luiz Inácio “Lula” da Silva</a>, a former <a href="https://www.france24.com/en/20180405-brazil-lula-suffers-downfall-stunning-rise">shoeshine boy turned popular leftist</a>, was jailed in 2018 for accepting bribes in what many Brazilians felt was a politicized effort to end his career. </p>
<p>A year later, the <a href="https://www.theguardian.com/world/2019/mar/21/brazils-former-president-michel-temer-arrested-in-corruption-investigation">same prosecutorial team</a> accused the conservative former President Michel Temer of accepting millions in bribes. After his term ended in 2019, <a href="https://www.nytimes.com/2019/03/21/world/americas/michel-temer-arrested-prisao.html">he was arrested</a>; his trial <a href="https://www.bbc.com/news/world-latin-america-41755666">was later suspended</a>. </p>
<p>Both Brazilian presidents’ prosecutions are part of a <a href="https://theconversation.com/why-brazil-is-winning-its-fight-against-corruption-71968">years-long sweeping anti-corruption probe by the courts</a> that has jailed dozens of politicians. Even the probe’s lead prosecutor is <a href="https://theconversation.com/brazils-operation-car-wash-a-corruption-investigator-is-accused-of-his-own-misdeeds-118889">accused of corruption</a>. </p>
<p>Brazil’s crisis either <a href="https://www.economist.com/the-americas/2021/02/27/the-sad-quiet-death-of-brazils-anti-corruption-task-force">shows nobody is above the law</a> – or tells the public that their government is incorrigibly corrupt. When that happens, it becomes easier for politicians and voters to view leaders’ transgressions as a normal cost of doing business. </p>
<p>For Lula, a conviction didn’t necessarily end his career. He was released from jail in 2019 and in March 2021 the Supreme Court annulled his conviction. <a href="https://www.theguardian.com/world/2022/jan/03/luiz-inacio-lula-da-silva-brazilian-former-president-mission-to-defeat-bolsonaro">He is now running to reclaim the presidency</a>. </p>
<p>[<em><a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=experts">Expertise in your inbox. Sign up for The Conversation’s newsletter and get expert takes on today’s news, every day.</a></em>]</p>
<h2>Stability versus accountability</h2>
<p>Mexico has a different approach to prosecuting past presidents: It doesn’t do it.</p>
<p>During the 20th century, Mexico’s ruling Institutional Revolutionary Party, or PRI, established a system of <a href="https://themonkeycage.org/2012/12/what-do-legislatures-in-authoritarian-regimes-do/">patronage and corruption</a> that <a href="https://www.cambridge.org/core/books/voting-for-autocracy/F6671D230EC7C458A30035ADB20F9289">kept members</a> in power and other parties in the minority. While making a show of <a href="https://www.economist.com/the-americas/2020/08/27/a-former-official-fires-a-legal-missile-at-mexicos-political-class">going after</a> smaller fish for corruption and other indiscretions, the PRI-run legal system <a href="https://books.google.com/books?id=XljPDwAAQBAJ&pg=PT237&lpg=PT237&dq=PRI+impunidad+sistema+legal+autocracia&source=bl&ots=ORccgnvCG2&sig=ACfU3U27BRKEFgK9IFuutq6v4vVLYghRzg&hl=en&sa=X&ved=2ahUKEwiwgf-4uLXvAhWRs54KHaj9CjYQ6AEwB3oECA8QAw#v=onepage&q=PRI%20impunidad%20sistema%20legal%20autocracia&f=false">wouldn’t touch top party officials</a>, even the most openly corrupt.</p>
<p>Impunity kept Mexico stable during its transition to democracy in the 1990s by placating PRI members’ fears of prosecution after leaving office. But <a href="https://theconversation.com/governors-gone-wild-mexico-faces-a-lost-generation-of-corrupt-leaders-76858">government corruption flourished</a>, and with it, organized crime. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Man in face mask and face shield holds a sign reading 'trials for ex-presidents - sign here'" src="https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A protester in Mexico City IN 2020 called for prosecution of several former presidents implicated in a corruption scandal involving Mexico’s state oil company, PEMEX.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-activist-displays-a-banner-during-the-collection-of-news-photo/1228287609?adppopup=true">Pedro Pardo/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Mexico is far from the only country to overlook the bad deeds of past leaders, including those who oversaw human rights violations. Our research finds that just <a href="https://faculty.washington.edu/vmenaldo/Articles%20in%20Journals/ISQ%20Article.pdf">23% of countries that transitioned to democracy between 1885 and 2004</a> charged former leaders with crimes after democratization. </p>
<p>Protecting authoritarians may seem contrary to democratic values, but many transitional governments have decided it is necessary for democracy to take root. </p>
<p>That’s the bargain South Africa struck as apartheid ended after decades of segregation and human rights abuses. South Africa’s white-dominated government <a href="https://books.google.com/books?id=zsdJDwAAQBAJ&printsec=frontcover&dq=Albertus+Menaldo#v=onepage&q&f=false">negotiated with Nelson Mandela’s Black-led African National Congress</a> to ensure they would avoid prosecution and keep their wealth. </p>
<p>This strategy <a href="https://anchor.fm/political-economy-forum/episodes/Karen-Ferree-Are-Voters-Tribal-er4u0q">helped the country transition to majority Black rule in 1994 and avoid</a> a civil war. But it hurt efforts to create a more equal South Africa: It still has one of the <a href="https://time.com/longform/south-africa-unequal-country/">world’s highest racial wealth gaps</a>. </p>
<p><a href="https://theconversation.com/why-growing-corruption-is-a-threat-to-south-africas-national-security-74110">Corruption is a problem</a>, too, as former President Zuma’s prosecution for lavish personal use of public funds shows. But South Africa has a famously independent judiciary, and Zuma’s prosecution is <a href="https://theconversation.com/why-south-africas-president-stands-on-solid-ground-in-the-fight-against-corruption-150305">supported by the current president</a>. It may yet deter future misdeeds. </p>
<p>Israel didn’t wait for Prime Minister Netanyahu to leave office to investigate wrongdoing. He was <a href="https://theconversation.com/a-major-democracy-fights-to-maintain-the-rule-of-law-this-time-its-israel-127584">indicted in 2019 for breaches of trust, bribery and fraud</a>; his trial is underway. </p>
<p>But it was fraught with delays, in part because as prime minister, Netanyahu used the power of the state to resist what he called a “<a href="https://www.cnn.com/2018/02/18/world/netanyahu-police-investigation">witch hunt</a>.” The trial triggered protests by his Likud party and an unsuccessful bid to secure immunity, among <a href="https://www.jpost.com/israel-news/politics-and-diplomacy/benjamin-netanyahus-successful-stalling-strategy-analysis-623967">other stall tactics</a>. Netanyahu was even reelected while under indictment.</p>
<p>Israel is partly a testament to the rule of law – and partly a cautionary tale about prosecuting leaders in democracies.</p>
<p><em>This story is an update <a href="https://theconversation.com/prosecuting-ex-presidents-for-corruption-is-trending-worldwide-but-its-not-always-great-for-democracy-156931">to an article</a> published on March 16, 2021.</em></p><img src="https://counter.theconversation.com/content/174648/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Criminal charges against former President Donald Trump for his role in the Jan. 6 Capitol riot could spark political consequences – not only for Trump, but for US democracy.James D. Long, Associate Professor of Political Science, Co-founder of the Political Economy Forum, Host of "Neither Free Nor Fair?" podcast, University of WashingtonMorgan Wack, Doctoral Student in Political Science, University of WashingtonVictor Menaldo, Professor of Political Science, Co-founder of the Political Economy Forum, University of WashingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1704262021-10-29T12:37:47Z2021-10-29T12:37:47ZSteve Bannon is held in criminal contempt of Congress, pushing key question over presidential power to the courts<figure><img src="https://images.theconversation.com/files/428905/original/file-20211027-25602-1wacc4i.jpeg?ixlib=rb-1.1.0&rect=16%2C8%2C5618%2C3742&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. Reps. Bennie Thompson and Liz Cheney, chair and vice chair of the committee investigating the Capitol insurrection, after voting to hold Steve Bannon in criminal contempt.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rep-bennie-thompson-chair-of-the-select-committee-news-photo/1347577606?adppopup=true">Alex Wong/Getty Images</a></span></figcaption></figure><p><a href="https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1172&context=dlj">Every president in history</a> has refused to disclose information to Congress. These refusals are so commonplace that there is <a href="https://www.justice.gov/sites/default/files/olc/opinions/1983/01/31/op-olc-v006-p0782_0.pdf">not even a comprehensive listing</a> of how often they occur.</p>
<p>In just the latest incident, the <a href="https://apnews.com/article/steve-bannon-donald-trump-capitol-siege-subpoenas-congress-f1807d868003e4e93ca9bf59d7821e90">House of Representatives voted to hold former Trump adviser Steve Bannon in contempt</a> of Congress in mid-October 2021. At <a href="https://www.nytimes.com/2021/10/21/us/politics/bannon-contempt-jan-6-subpoena.html">Trump’s request, Bannon defied a subpoena</a> from the committee investigating the Capitol insurrection, refusing to testify. </p>
<p>The House vote captured the <a href="https://theconversation.com/can-congress-hold-trump-accountable-4-essential-reads-on-a-historic-power-struggle-128900">constant power struggle</a> between presidents and Congress.</p>
<p>The recent eruption of this battle between the two branches of government over access to presidential information raises questions about the constitutional authority of Congress and how lawmakers acquire the information needed to hold the executive branch accountable in the <a href="https://www.law.cornell.edu/wex/separation_of_powers_0#:%7E:text=Separation%20of%20Powers%20in%20the,branch%20from%20becoming%20too%20powerful.">U.S. system of separation of powers</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Steve Bannon getting into a limousine amid a crowd." src="https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Steve Bannon, former White House senior counselor to President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-white-house-senior-counselor-to-president-donald-news-photo/1186387838?adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<h2>Power to investigate</h2>
<p>No constitutional provision explicitly states that Congress has the authority to investigate <a href="https://supreme.justia.com/cases/federal/us/354/178/">problems or defects</a> in the nation’s social, economic or political systems. But the legislature’s power to acquire information through investigation is an <a href="https://supreme.justia.com/cases/federal/us/341/367/">established</a> part of representative democracy.</p>
<p>This is true regardless of the investigation’s end result or even whether critics accuse Congress of being partisan. As the <a href="https://supreme.justia.com/cases/federal/us/421/491/">Supreme Court</a> put it in 1975, democratic governance means that some investigations may be nonproductive. In “times of political passion,” the court said, “dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.”</p>
<p><a href="https://supreme.justia.com/cases/federal/us/166/661/">Over 200 years of Supreme Court precedent</a> also recognizes that the fundamental right of Congress to investigate includes the power of subpoena, which compels testimony by an individual or requires them to produce evidence.</p>
<p>But the power of subpoena is of little value without the ability to enforce it. That mechanism is called contempt. </p>
<h2>How contempt works</h2>
<p>If a target of a congressional investigation refuses to comply with a subpoena, Congress can hold the individual in contempt. There are three forms of contempt – inherent, civil and criminal – each of which relies on a different branch of government for enforcement. </p>
<p>Congress has its <a href="https://supreme.justia.com/cases/federal/us/19/204/">own power</a> to enforce a subpoena. However, to use that power, Congress has to conduct a trial and then find the individual in contempt. Because this process is lengthy and cumbersome, Congress has <a href="https://sgp.fas.org/crs/misc/RL34097.pdf">not used it</a> since the 1930s. </p>
<p>Congress can also ask the courts to declare an individual in contempt. Known as civil contempt, this method requires a resolution authorizing a congressional committee or the House general counsel’s office to file a civil lawsuit. The courts then determine whether Congress has the right to the information it has demanded.</p>
<p>Congress used this power in the past three presidential administrations – <a href="https://crsreports.congress.gov/product/pdf/RL/RL30240/37">Bush, Obama and Trump</a> – to acquire information. </p>
<p>However, civil contempt is also slow moving. For example, Congress held Attorney General Eric Holder in civil contempt in 2012 for withholding information relating to <a href="https://www.thedailybeast.com/what-is-operation-fast-and-furious-11-questions-and-answers">Operation Fast and Furious</a>, a Department of Justice policy that allowed certain illegal gun sales in order to track Mexican drug cartels. Congress eventually obtained some records, but it took <a href="https://www.politico.com/story/2019/05/09/fast-and-furious-documents-holder-1313120">seven years </a> for courts to reach a settlement. </p>
<p>The last form of contempt relies on the executive branch – specifically the Department of Justice and U.S. attorneys – for enforcement. If someone refuses to testify or produce documents, a congressional committee can first cite the individual in <a href="https://www.law.cornell.edu/uscode/text/2/192">criminal contempt</a> and then ask its chamber of Congress to adopt a resolution affirming the committee’s decision. After that resolution, the Department of Justice and U.S. attorneys decide whether to pursue the matter in court. </p>
<p><a href="https://www.cnn.com/2021/10/21/politics/steve-bannon-house-contempt-vote/index.html">Criminal contempt is what the House used in the Bannon</a> case.</p>
<h2>Bannon’s defiance</h2>
<p>In June 2021, the House of Representatives <a href="https://www.congress.gov/bill/117th-congress/house-resolution/503/text">established</a> a select committee to investigate the facts and circumstances surrounding the Jan. 6 attack on the Capitol. As part of the select committee’s investigation, committee Chairman <a href="https://www.cnbc.com/2021/09/23/house-committee-probing-jan-6-capitol-riot-subpoenas-four-trump-allies-including-mark-meadows-and-steve-bannon.html">Bennie Thompson signed a subpoena</a> requiring Bannon to produce documents by Oct. 7 and to appear for a deposition on Oct. 14. </p>
<p>In response to the subpoena, former President Trump <a href="https://www.nytimes.com/2021/10/07/us/politics/jan-6-subpoenas.html">instructed Bannon,</a> his former aide, not to comply.</p>
<p>Bannon <a href="https://www.jurist.org/news/2021/10/house-committee-releases-contempt-report-on-stephen-bannon/">refused</a> to provide a single document or appear for his deposition, citing Trump’s <a href="https://www.nytimes.com/2021/10/21/us/politics/bannon-contempt-jan-6-subpoena.html">directive</a>.</p>
<p>The select committee then issued a <a href="https://docs.house.gov/meetings/IJ/IJ00/20211019/114156/HRPT-117-NA.pdf">report</a> recommending that the House hold Bannon in criminal contempt. On Oct. 21, the House agreed with the committee’s recommendation and <a href="https://www.congress.gov/bill/117th-congress/house-resolution/730">adopted a resolution</a> finding Bannon in contempt. </p>
<p>House Speaker <a href="https://www.npr.org/2021/10/21/1048051026/u-s-house-approves-criminal-contempt-referral-for-steve-bannon">Nancy Pelosi officially certified</a> the contempt report and referred it to the Department of Justice this week. The department will now decide whether to prosecute the case.</p>
<p>Attorney General <a href="https://www.cnn.com/2021/10/21/politics/garland-house-judiciary-hearing-oversight/index.html">Merrick Garland said</a> that the department “will apply the facts and the law” when making this decision.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters brandishing flags reading 'Trump' and 'Don't Tread on me'" src="https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The committee that issued the subpoena to Bannon is investigating the Jan. 6 Capitol riot by Trump supporters.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protesters-supporting-u-s-president-donald-trump-break-into-news-photo/1294935650?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<h2>The catch</h2>
<p>While Bannon’s failure to comply with the congressional subpoena is striking, he needed to do so to challenge the subpoena. </p>
<p>To <a href="https://scholarship.law.cornell.edu/cjlpp/vol25/iss2/4/">legally contest</a> a congressional request for information, an individual first must refuse to comply and then, if held in criminal contempt, can provide a defense.</p>
<p>Bannon’s defense – and Trump’s instruction not to provide information to Congress – centers on the concept of executive privilege. Since President George Washington, <a href="https://theconversation.com/trump-ukraine-and-a-whistleblower-ever-since-1796-congress-has-struggled-to-keep-presidents-in-check-124146">executive officials have claimed</a> the ability to withhold certain information that is fundamental to the operation of government. These claims relate to the idea that confidentiality encourages candor among presidents and their advisers when making important governmental decisions and policies. </p>
<p>In a letter to Bannon and three others under congressional investigation, Trump’s lawyer <a href="https://time.com/6105290/steve-bannon-subpoean-trump-january-6-commission/">said they are protected</a> from compelled disclosure “by the executive and other privileges, including among others the presidential communications, deliberative process, and attorney-client privileges.”</p>
<p>Presidents and their advisers have always <a href="https://www.lawfareblog.com/executives-privilege-rethinking-presidents-power-withhold-information">interpreted executive privilege broadly</a>. However, President Trump and his advisers have taken an even <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">more expansive view</a> than previous administrations. </p>
<p>My own <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/psq.12714?casa_token=85PEfMDdpq0AAAAA:1bcmfrV-s4DNtPTj8AS5VCMkyTcmsiJ9i49Ro-pR7EIFo43xJhc6_VcSkbuz7iQ5tmkRmnjQwJTbBfU">research</a> suggests that Trump and his advisers have asserted this privilege in at least 84 different federal cases. In contrast, in Obama’s first term, only 37 federal cases involved executive privilege claims. The claims in both administrations were made in a range of cases, from Freedom of Information Act lawsuits to lawsuits over agency actions.</p>
<p>Courts have <a href="https://law.justia.com/cases/federal/appellate-courts/cadc/08-5357/08-5357-1142234-2011-03-24.html">recognized</a> that cases over congressional access to information inevitably force the judiciary to side with one branch over the other. Yet, <a href="https://casetext.com/case/oversight-v-holder">courts acknowledge</a> the need to arbitrate disputes resulting from congressional investigations, particularly when those investigations could implicate presidential misconduct or criminal activity. </p>
<p>At least <a href="https://archive.constitutionproject.org/wp-content/uploads/2009/07/WhenCongressComesCalling.pdf">14 presidential administrations</a> have been the subject of investigations that required sitting or former presidents and their advisers to produce evidence. Legal disputes over these investigations have rarely made it to court.</p>
<p>But Bannon has <a href="https://www.politico.com/news/2021/10/19/jan-6-commission-steve-bannon-criminal-contempt-516233">made it clear</a> that he will not cooperate with Congress until the judiciary steps in.</p>
<p>How the courts handle the matter will have implications for how Congress holds current and future presidential administrations accountable.</p>
<p>[<em><a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-important">Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a>.</em>]</p><img src="https://counter.theconversation.com/content/170426/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer L. Selin has received funding and/or support for her research on Congress and the executive branch from the Center for Effective Lawmaking, Dirksen Congressional Center, Kinder Institute on Constitutional Democracy, and Levin Center at Wayne Law.</span></em></p>Donald Trump asked his former presidential aides not to testify before a congressional committee investigating the Jan. 6 Capitol insurrection – testing the limits of congressional oversight.Jennifer Selin, Kinder Institute Assistant Professor of Constitutional Democracy, University of Missouri-ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1638722021-07-06T06:54:51Z2021-07-06T06:54:51ZJacob Zuma: when did erstwhile South African revolutionary lose his way?<figure><img src="https://images.theconversation.com/files/409656/original/file-20210705-39677-18fs4vu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Jacob Zuma.</span> <span class="attribution"><span class="source">(Photo by Rajesh Jantilal/AFP via Getty Images</span></span></figcaption></figure><p>It’s the small crimes that bring you down. Al Capone went merrily on his murdering way until the FBI <a href="https://archives.fbi.gov/archives/news/stories/2005/march/capone_032805">nailed him for tax evasion</a>. Richard Nixon seemed immune to the consequences of lying about Vietnam, Cambodia and Chile but his lies over the silly crime of burgling the Democratic Party’s headquarters <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">did for him</a>.</p>
<p>So it is with Jacob Zuma South Africa’s former president. He faced <a href="https://www.iol.co.za/news/politics/jacob-zuma-pleads-not-guilty-to-18-corruption-charges-e5d7fe94-9e4a-4883-ab7f-e6625ab48556">multiple charges of corruption</a>, but, so far, has avoided his day in court. He was <a href="https://www.theguardian.com/world/2016/oct/10/khwezi-woman-accused-jacob-zuma-south-african-president-aids-activist-fezekile-ntsukela-kuzwayo">tried for rape and acquitted</a>. As president he was accused of working with an Indian family, <a href="https://www.bbc.com/news/world-africa-22513410">the Guptas</a>, in orchestrating <a href="https://www.sahistory.org.za/archive/state-capture-report-public-protector-14-october-2016">“state capture”</a> (seizing control of state organs for corrupt purposes). He is refusing to cooperate with the <a href="https://www.sastatecapture.org.za/">judicial commission</a> investigating the allegations.</p>
<p>In the end it is his contempt of the Constitutional Court’s order that he cooperate with the commission that may send him to jail <a href="https://theconversation.com/historic-moment-as-constitutional-court-finds-zuma-guilty-and-sentences-him-to-jail-163612">for 15 months</a>. He’s appealed for a <a href="https://www.news24.com/news24/southafrica/news/reprieve-for-zuma-as-concourt-agrees-to-hear-his-contempt-rescission-case-20210703">rescission of the order</a>.</p>
<p>A question that invariably gets asked is whether power changed him. The country’s former foreign intelligence chief Moe Shaik seemed to think so, <a href="https://www.nb.co.za/en/view-book/?id=9780624088967">writing glowingly</a> of the capable “struggle” version of Zuma, suggesting it was only as president that things went awry, although he noted that we will never know when “precisely Jacob Zuma lost his way”.</p>
<p>Perhaps it came rather earlier than Shaik thinks. As with so many fallen revolutionaries, the seeds of venality seem to have been sown in his younger days. It’s just that political power provided the nutrients for spectacular sprouting.</p>
<h2>A taste of Zuma</h2>
<p>My first taste of Zuma came in 1989. The ANC’s <a href="https://www.sahistory.org.za/dated-event/members-anc-and-sacp-are-detained-due-operation-vula">Operation Vula </a> was under way. It involved building an underground insurrectionary network and I belonged to one of its regional leadership structures. We received an instruction to investigate whether <a href="https://www.sahistory.org.za/people/peter-mokaba">Peter Mokaba</a>, the leader of the African National Congress Youth League (ANCYL), <a href="https://mg.co.za/article/2002-06-14-two-faces-of-mokaba/">was a spy</a>. </p>
<p>Our damning report was presented to Zuma and the ANC’s security chief Joe Nhlanhla who informed us that <a href="https://www.sahistory.org.za/people/peter-mokaba">Mokaba</a>, who died in 2002, was an informer whose relationship with the security police <a href="https://mg.co.za/article/2002-06-14-two-faces-of-mokaba/">went deeper than we’d suspected</a>. Other ANC leaders got on board to spread this message but we were told that <a href="https://theconversation.com/south-africas-anc-is-celebrating-the-year-of-or-tambo-who-was-he-85838">Oliver Tambo</a>, who then led the exiled ANC, decided it would be better to rehabilitate Mokaba, which duly happened. </p>
<p>Soon after that I was visited by a senior leader of the South African Communist Party, which was in an alliance with the ANC. He pleaded with me to do a journalistic hatchet job on Zuma. He said his own home in Lusaka, the capital of Zambia, was bugged by ANC intelligence and that Zuma was corrupt. </p>
<p>I ignored the request. But it was one of several signs I’d seen that Zuma was despised within the Communist Party. </p>
<p>Zuma had briefly been on the party’s politburo but fell from favour partly because of conflicts between ANC intelligence and its armed wing Umkhonto we Sizwe. One conflict involved commander Thami Zulu, who was branded by Zuma’s allies as an enemy agent, <a href="https://www.politicsweb.co.za/news-and-analysis/how-the-killing-of-thami-zulu-contradicts-zumas-cl">detained for 14 months</a> by the ANC in Lusaka and <a href="https://www.dailymaverick.co.za/opinionista/2018-02-15-the-murder-of-thami-zulu-a-call-for-a-formal-judicial-inquiry/">died of poisoning a week after his release</a>. Those who knew Zulu insisted he was innocent.</p>
<p>His death contributed to the hatred for Zuma. It was by no means the only crime attributed to ANC intelligence.</p>
<h2>Steely resolve</h2>
<p>Zuma started life in Nkandla, KwaZulu-Natal, in <a href="https://www.sahistory.org.za/people/jacob-gedleyihlekisa-zuma">1942</a>, the son of a policeman and a domestic worker. He received scant formal education but emerged as a lad with a sharp mind and steely resolve. At 17 he joined the ANC and three years on was arrested as part of a group of military recruits, leading to a <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">10-year spell on Robben Island</a>. He went into exile in 1975.</p>
<p>His ambition, prodigious memory and avuncular personality all helped him along and he became the ANC’s chief representative in Mozambique, a member of its political and military committee and its intelligence chief in 1987. Those who backed him tended to overlook his darker side, including his sexual promiscuity. </p>
<p>When Zuma returned to South Africa in 1990 KwaZulu-Natal was in the midst of a territorial war between the ANC and Chief Mangosuthu Buthelezi’s Zulu nationalist <a href="https://www.cambridge.org/core/journals/history-in-africa/article/abs/inkatha-and-its-use-of-the-zulu-past/14E0B3C8A767C4811A3A1AD974A1EA77">Inkatha </a> movement. He emerged as ANC leader there after seeing off the ANC warlord <a href="https://www.sahistory.org.za/people/harry-themba-gwala">Harry Gwala</a>, using his charm and Zulu credentials to secure the peace. But this came at a cost. The ANC drew some of Inkatha’s most notorious killers into its fold and a new form of violence broke out. </p>
<p>This time it had nothing to do with ideology. Instead, it was all about money – as so much was when Zuma was around.</p>
<h2>Corruption and legal jeopardy</h2>
<p>In 2004, when Zuma was deputy president, his financial advisor Schabir Shaik was arrested for his role in an arms deal and sentenced to 15 years’ imprisonment (but released after 28 months on <a href="https://www.iol.co.za/thepost/news/schabir-shaik-is-a-free-man-48662347">spurious health grounds</a>). He was found to have solicited bribes of R500,000 a year for Zuma, who was later charged with corruption. This was followed by further charges relating to another arms deal. But procedural irregularities and allegations of political interference meant <a href="https://theconversation.com/president-zuma-loses-bid-to-dodge-criminal-charges-but-will-he-have-the-last-laugh-85703">none of these went to trial</a>.</p>
<p>He faced legal jeopardy from a different source in 2006, tried for allegedly raping a 31-year-old Aids activist whom he knew to be HIV-positive (he said he believed a <a href="https://www.sahistory.org.za/archive/sas-zuma-showered-avoid-hiv-bbc-news-05-april-2006">shower after sex would be adequate protection</a>). Zuma claimed it was <a href="https://www.iol.co.za/news/south-africa/zuma-i-had-to-oblige-271913">his duty as a Zulu man</a> to have sex with a woman if she wore a short kanga (African wrap), and that he could not leave her <a href="https://journals.co.za/doi/pdf/10.10520/AJA20732740_29">“unfulfilled”</a>. </p>
<p>He argued Zulu men have sexual primacy over women and he could therefore not be guilty.</p>
<blockquote>
<p><a href="https://www.independent.co.uk/news/people/profiles/jacob-zuma-deadly-serious-1667308.html">To deny her sex, that would have been tantamount to rape</a>.</p>
</blockquote>
<p>Zuma was <a href="https://www.thenewhumanitarian.org/fr/node/226198">acquitted</a> while the alleged victim was vilified, with Zuma and his supporters singing his favourite song, <a href="https://www.news24.com/news24/zuma-gets-heros-welcome-20060213">Lethu Mshini Wami</a> (Bring me my machine gun) during and after the trial. The woman, later named as Fezekile Ntsukela Kuzwayo, fled into exile for safety. She returned after a decade and died <a href="https://ewn.co.za/2016/10/09/Zumas-rape-accuser-Khwezi-dies">in 2016</a>. </p>
<p>Thabo Mbeki had dumped Zuma as his deputy <a href="https://www.iol.co.za/news/politics/zuma-axed-243733">in 2005</a> and the long-time allies became enemies. The <a href="https://www.sahistory.org.za/people/thabo-mvuyelwa-mbeki">paranoid Mbeki</a> lacked the common touch and was oddly devoid of his former gracious charm, while Zuma was the opposite: friendly and humorous. By playing on popular concerns about service provision, crime, and Aids, and being chummy with the unions, the youth and the left, he won the backing of people who should have been more wary.</p>
<p>Zuma defeated Mbeki for the ANC leadership <a href="https://www.sahistory.org.za/article/52nd-anc-national-conference-polokwane-2007">in 2007</a> and became president in 2009, remaining in office for <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">nine years</a>. The left hoped he’d curb his excesses, but the opposite happened. The Guptas fed his greed in return for state contracts, to the point that they <a href="https://pari.org.za/betrayal-promise-report/">offered cabinet positions to obedient hopefuls</a>.</p>
<p>Eventually, Zuma over-reached. He dipped into state coffers to upgrade his house <a href="https://theconversation.com/dramatic-night-in-south-africa-leaves-president-hanging-on-by-a-thread-57180">in Nkandla</a>. Then he <a href="https://theconversation.com/why-zumas-actions-point-to-shambolic-management-of-south-africas-economy-52174">fired two finance ministers</a> who would <a href="https://theconversation.com/firing-of-south-africas-finance-minister-puts-the-public-purse-in-zumas-hands-75525">not do his bidding</a>. </p>
<p>Cyril Ramaphosa won the <a href="https://theconversation.com/the-anc-has-a-new-leader-but-south-africa-remains-on-a-political-precipice-89248">ANC leadership race in December 2017</a>. Two months later Zuma stepped down as president of the country. The Guptas promptly <a href="https://www.thetimes.co.uk/article/tony-ajay-and-atul-gupta-flee-south-africa-and-denounce-corruption-inquiry-lt5828rxh">fled to Dubai</a>.</p>
<p>Zuma faces jail for contempt, the revival of the original fraud, racketeering and money laundering charges, and possibly further charges, depending on the findings of the Zondo Commission into state capture, whose subpoenas he ignored. </p>
<p>There will be more posturing and more singing of Lethu Mshini Wami by followers who stand to lose from his demise. But at the age of 78 Zuma’s long day in the sun is over.</p><img src="https://counter.theconversation.com/content/163872/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gavin Evans does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The posturing is bound to continue. But at the age of 78 Jacob Zuma’s long day in the sun is over.Gavin Evans, Lecturer, Culture and Media department, Birkbeck, University of LondonLicensed as Creative Commons – attribution, no derivatives.