Another Saturday Night Massacre? Washington may be ready this time
Posted August 12
A bipartisan group of senators recently introduced legislation designed to prevent the firing of the man investigating President Donald Trump's 2016 campaign, Justice Department special counsel Robert Mueller.
In the backdrop is Trump's consistent denunciation of Mueller's Russia investigation and the possibility that a Robert Bork would be waiting in the wings.
Bork was the Justice Department official who fired Watergate prosecutor Archibald Cox in October 1973 on orders from President Richard Nixon. The attorney general and his deputy at the time resigned rather than obey Nixon, but Bork, the department's No. 3, followed Nixon's directions.
The infamous "Saturday Night Massacre" ended badly all around. It intensified scrutiny of Nixon -- another Watergate prosecutor was named -- and left a cloud over Bork.
That episode resounds today as another president chafes under a special counsel's inquiry. Mueller is exploring allegations of collusion between Russia and Trump campaign associates before the 2016 election.
But here's a big difference: Bork was blindsided by the rapid succession of events.
No one today would be caught off guard if the President tried to sack the special counsel. Trump has repeatedly criticized Mueller, Deputy Attorney General Rod Rosenstein, who appointed him, and Attorney General Jeff Sessions, who recused himself in the matter.
In May, Trump fired FBI director James Comey, who had been overseeing the Russia investigation.
Trump on Thursday, however insisted he doesn't have plans to fire Mueller.
"I haven't given it any thought," he told reporters from his vacation in Bedminster, New Jersey. "I've been reading about it from you people. You say, 'Oh, I'm going to dismiss him.' No, I'm not dismissing anybody."
But that won't stop speculation in Washington; Trump has reversed course before.
Nixon, who was fighting Cox's subpoena of White House tape recordings related to the Watergate cover-up, had not launched a warning that Cox was in danger. Bork suddenly found himself in the spotlight and felt the political consequences for decades.
"Blurred thoughts and the emotion of the moment"
Bork, who died in 2012, was constantly challenged on whether he steadied the Justice Department amid a constitutional crisis, as he insisted, or simply acquiesced to a president caught in the vice of Watergate. Bork's action in 1973 became a flashpoint in his failed 1987 Supreme Court nomination.
"The sense of panic and emotion and crisis ... was in the air," Bork recounted during that Senate testimony. "[T]here was no doubt that Archibald Cox was going to be fired by the White House in one form or another. The only question was how much bloodshed there was in various institutions before that happened."
Bork said he followed Nixon's order and temporarily took over the Justice Department to prevent mass resignations.
Bork explained his actions that night on multiple occasions, including in a posthumous memoir published in 2013, where he revealed that Nixon suggested he would be rewarded with a seat on the Supreme Court.
Back in 1973, Bork was the solicitor general, the person who represents federal government before the Supreme Court in what was then the No. 3 spot at the Justice Department.
On that fateful Saturday, Cox declared at a news conference that he would not retreat from trying to obtain tapes that could possibly demonstrate Nixon had discussed a cover up of involvement in the June 1972 break-in of Democratic headquarters at the Watergate building.
Nixon asked Attorney General Elliot Richardson to fire Cox. Richardson refused and resigned instead, as did his deputy William Ruckelshaus.
"It is a little hard to recall the blurred thoughts and the emotion of the moment," Bork told senators in 1987, "but one thought that went through my mind was that we were in a governmental crisis which would not be resolved until Mr. Cox left."
Yet, as Bork acknowledged, the firing would not be the end of the matter: The public wanted a special prosecutor to pursue Watergate. Leon Jaworski was named a few weeks later and took the fight over the White House tapes to the Supreme Court. The justices ordered release of the tapes, which led to Nixon's resignation under the threat of impeachment.
In the 2013 memoir, Bork revealed that soon after he fired Cox, Nixon told him, "You're next when a vacancy occurs on the Supreme Court."
"I don't know whether Nixon actually, but mistakenly, thought that he still had the power to get me confirmed after the Massacre, or whether he was holding out the prospect in order to seal my continued loyalty," Bork wrote. "Whichever it was, I did not think it a promise that could be kept even if it were genuine. I hadn't the courage to tell him that I didn't think he could get anyone confirmed to the Supreme Court, and particularly not the person who fired Cox."
President Ronald Reagan appointed Bork in 1982 to the US Court of Appeals for the District of Columbia Circuit. Five years later, the Senate rejected Reagan's attempt to elevate Bork to the Supreme Court by a 42-58 vote.
Although senators scrutinized his actions from the night of October 20, 1973, Bork lost the seat because of his far-right judicial record.
What's being done
Comparisons between Nixon and Trump have accelerated since Trump's firing of Comey, which Trump told NBC News arose from his frustration over the Russian probe.
In tweets and other remarks, Trump has criticized the Russia investigation as a "witch hunt," "phony" and "sad." He has also denounced Mueller, Rosenstein and Sessions at various points.
All point to an interest in Mueller's dismissal.
Under current law, the attorney general (or now, because of Sessions' recusal, his deputy) has the power to fire the special counsel. As was the situation for Nixon, Trump could order the discharge through his authority as head of the executive branch.
A pair of new Senate bills would make such action difficult by involving the judicial branch.
One bill, introduced by Sens. Chris Coons, D-Delaware, and Thom Tillis, R-North Carolina, would permit a special counsel who was fired without cause to seek review and possible reinstatement from a panel of three federal judges. Any ruling could be appealed directly to the Supreme Court.
A separate proposal, from Sens. Lindsey Graham, R-South Carolina, and Cory Booker, D-New Jersey, would require approval from a three-judge panel before a special counsel was discharged.
Irrespective of whether either would become law and hold up under a likely separation-of-powers challenge, they reveal expectations that did not exist in 1973.
Northwestern University law professor Steven Lubet, who specializes in legal ethics, said that during the "Massacre," Bork rightly followed Nixon's order and tried to keep the Justice Department running.
"Bork was doing his duty," Lubet said. "There was no time to prepare. Nobody was saying ahead of time, 'What will happen if Nixon fires Cox?' It was something that had never happened before."
Added Lubet, "That won't be the case now, if President Trump fires Mueller."