It has happened before: the interim appointment of a man unknown and unqualified, except for his open loyalty to the president, to one of the top law enforcement jobs in the federal government.
It was May 1972 when President Richard Nixon abruptly elevated Patrick Gray III, a Justice Department official as colorless as his name, to the directorship of the FBI following the sudden death of J. Edgar Hoover. The announcement came as a shock. The conventional wisdom, both outside and inside the bureau, was that one of Hoover’s hand-picked executives would run the FBI when he no longer could. The naming of Gray, even on an acting basis, was widely criticized. The president “has chosen a highly political and professionally unqualified crony to direct this powerful and semisecret police agency,” the New York Times editorialized.
There is a parallel between Donald Trump’s selection of Matthew Whitaker to be the acting attorney general, replacing Jeff Sessions, and Nixon’s appointment of Gray. Both appear to be efforts to personalize law enforcement if not justice itself. Yet there are also marked differences between the two situations that make Trump’s brazen selection of Whitaker more disturbing in its implications than Gray’s appointment—and nearly every other maneuver, legal or political, that Nixon tried in his desperate effort to survive the Watergate scandal.
To begin with, Gray was not appointed in the midst of an investigation that threatened to reach inside the Oval Office. The genuine reason for naming him acting director was pedestrian and born out of political caution. For the first time, an FBI director would have to be confirmed by the Senate, with its comfortable Democratic majority. Nixon wanted to avoid at all costs a damaging confirmation battle—possibly even a defeat—in an election year. The president regarded the directorship as important as the nomination of a chief justice to the Supreme Court and intended to wait until after the November election to make his final choice. Gray was promised full consideration if he performed creditably, but no more.
To be sure, when the Watergate burglars were apprehended inside the offices of the Democratic National Committee on June 17—a month after Gray’s appointment—the president was initially comforted by the thought he had installed his own man at the bureau. But that consolation didn’t last long. A large corporate donation to Nixon’s campaign had been laundered through Mexico before ultimately landing in the bank account of one of the burglars, Bernard Barker. The White House wanted Gray to block this aspect from being probed on the specious grounds that it involved CIA equities. Yet he soon proved to be a combination of incapable and/or unwilling to cordon off this portion of the scandal from the FBI’s burgeoning investigation. “We’re having problems with the bureau,” White House chief of staff H.R. “Bob” Haldeman told the president on June 30. “Gray doesn’t know how to turn them off.”
What appeared to be, despite the initial criticism, a neat and tidy political solution in May, in fact, had turned problematic by late June. Gray wanted the permanent appointment, and that put him between a rock and a hard place after the break-in. To win Senate confirmation, he had to let the FBI investigation proceed unimpeded. To get the president’s nod in the first place, however, he had to be as helpful to the White House as possible. That is why he bowed to the request of White House counsel John Dean to disclose to him the results of the bureau’s investigation as it proceeded, under the presumption that Dean was acting in an ethical capacity rather than as the desk officer of the cover-up. For the same reason, Gray acceded to the request from Dean and White House domestic adviser John Ehrlichman that Gray take custody of some papers unrelated to the burglary found in the White House safe of E. Howard Hunt, one of the masterminds of the break-in. Both decisions to cooperate eventually proved disastrous mistakes in judgment, though far short of criminal.
The last factor that made for the FBI’s annus horribilis under the hapless Pat Gray was leaks—specifically, leaks to Time magazine and the Washington Post in the summer and fall of 1972. Nixon had not foreseen that his determination to have an outsider run the bureau, after 48 years of J. Edgar, would incite a rebellion in the executive ranks led by W. Mark Felt. In this regard, the break-in was an unexpected gift. Leaks about the highly sensitive investigation, Felt promptly realized, would destroy whatever faith the president had in Gray and probably have the added benefit of persuading Nixon that only an insider could be entrusted to run the bureau. Gray, utterly naïve about the pestilential waters he was attempting to navigate, never caught onto Felt’s perfidy. Indeed, the acting director aided Felt in his design by effectively recusing himself from operational involvement in the investigation.
Much more could be said about the contours of Gray’s role in Watergate, including his infuriating (to the White House) Senate confirmation hearings in March 1973. For the first time, Gray’s testimony focused attention on John Dean’s role and, by doing so, helped unravel the cover-up. But the marked differences between the circumstances and context of Gray’s appointment and Matthew Whitaker’s ought to be clear enough.
If it is possible to be less qualified and credentialed—and more partisan—for a senior post than Gray was for the directorship, then Whitaker is a case in point. Following an undistinguished stint as a U.S. attorney in Iowa, he became involved in a Florida company deemed a scam by the Federal Trade Commission. His signal contribution seems to have been invoking his former federal title to bully complaining customers into submission. Afterwards he became executive director of the Foundation for Accountability & Civic Trust, one of those pseudo “good government” nonprofit organizations that thrive in Washington while pursuing a strictly partisan agenda.
Unlike Gray, Whitaker has been appointed in the midst of scandal, and for the apparent purpose of bringing a duly constituted investigation to heel. Pat Gray made no secret of his loyalty to and admiration for Nixon prior to becoming director. But he did not audition on television for the directorship via a series of prejudicial statements about an ongoing investigation, making claims calculated to win the president’s attention and approbation. It would be one thing if Whitaker regularly offered up sober comments about prosecutorial overreach and otherwise applied legal brakes to overheated speculation. Instead, he acted the part of a cog in the Trump-wing talking-points echo chamber.
Gray tried to appease several masters and ended up disserving and disgracing everyone, from the president to the bureau on down to himself. By contrast, Whitaker seems to have no expectation of being a serious candidate for the permanent nomination. This leaves him politically unbound and free to serve no one’s interests save Trump’s. The timing and possible duration of Whitaker’s appointment—Trump doesn’t have to send a nomination to the Senate for 210 days—also give the acting attorney general maximum opportunity to wreak havoc. Even more ominously, if Whitaker’s ambition is whetted for the permanent appointment, he doesn’t have to worry about currying favor among Democrats in the Senate, given how that body has largely behaved over the past two years. Without the ability to filibuster, Democrats could not stop a Whitaker nomination from going through if Senate Republicans held ranks.
Who thinks Trump, having already skirted the normal line of succession at Justice, would not have the audacity to nominate Whitaker? The acting appointment is already a naked power play, rivaled only by Nixon’s infamous Saturday Night Massacre, in which the president ordered the firing of special prosecutor Archibald Cox rather than turn over the secret tape recordings that implicated the Oval Office in the cover-up.
The acting attorney general poses a direct threat not to special counsel Robert Mueller’s investigation per se, but to the fruits from that probe, if not justice itself. Already Whitaker may be disclosing to the president’s lawyers, a la Pat Gray’s back channel to John Dean, the evidence investigators and the grand jury have accumulated. He might also attempt to thwart Mueller’s work far beyond premature disclosure. Now that he has apparently wrested internal oversight away from Deputy Attorney General Rod Rosenstein, Whitaker could try to impede distribution and/or publication of Mueller’s final report on spurious grounds. Whitaker might refuse to give needed sanction to further steps Mueller wants to take on the basis of the investigation, ranging from a presidential subpoena to more indictments. With the Senate remaining impeachment-proof, the overriding concern of the White House has to be the possibility that Mueller would seek permission to indict the president and/or members of his family. The acting attorney general can quash that effort, though not in secret.
Still, if Watergate and the ill-conceived appointment of Pat Gray teaches us anything, it is that Matthew Whitaker may have as much difficulty running the Justice Department as Gray had directing the FBI, especially if career officials perceive Whitaker as hell-bent on removing the blindfold from Lady Justice. Beyond that, the law of unintended consequences often prevails in Washington. Personnel decisions dictated by sheer self-interest have a way of exploding in a president’s face.
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