Law Links - October 2016

A cautionary rethinking of the Watergate scandal

Geoff Shepard with students Diane Orosz ‘18, John Burns ‘17, Kelsey Hanson ‘17 and Joshua Mertzlufft ‘18.  (back row) Alexander Fehrman ‘17 and Jason Michael Gunning ’18

For the law students in attendance, the Watergate affair is the stuff of U.S. history books – they weren’t yet born when President Richard Nixon resigned in disgrace in 1973.

But history came alive as a Nixon administration insider shared his take on the larger forces that brought Nixon down – a story that he said is rife with prosecutorial overreach and judicial misconduct.

“America owes Richard Nixon an apology,” speaker Geoff Shepard asserted to members of UB School of Law’s student chapter of the Federalist Society, a conservative and libertarian legal advocacy organization.

The Real Watergate Scandal: Collusion, Conspiracy and the Plot that Brought Nixon Down (Regnery Press)

Shepard, author most recently of The Real Watergate Scandal: Collusion, Conspiracy and the Plot that Brought Nixon Down (Regnery Press), was an official in the White House’s Domestic Council – the domestic policy equivalent of the National Security Council – during Nixon’s tenure. In his Oct. 5 appearance at the School of Law, Shepard said that the president’s downfall came in part because of the enemies he made in his role as a congressman in exposing State Department official Alger Hiss as a Communist spy in the late 1940s.

“Nixon led the investigation and earned the undying enmity of the Eastern liberal establishment,” Shepard said.

As his presidency unraveled and accusations of a Watergate burglary cover-up reached ever closer to the Oval Office, Shepard said, Nixon fell victim to politically motivated collusion between special prosecutor Archibald Cox and D.C. Circuit Court Chief Judge David Bazelon.

“There hadn’t been a special prosecutor since the Teapot Dome scandal in the 1920s,” Shepard said. “There was a staff of 100 people, 60 of whom were lawyers, to investigate. Every close call was an indictment. The Watergate cover-up verdicts are hopelessly tainted and should be challenged by writ of coram nobis,” under which a court can reopen a case and correct its judgement upon discovery of a substantial error.

“This was a hostile takeover without an election. And if no one is held responsible, it could well happen again.”

Both parties have learned that allegations of criminality can be devastating to their opponent, so one has to be wary of politicized prosecutions.

Shepard pointed to what he called some “time-tested safeguards” against government corruption: the checks and balances of divided federal power, an informed citizenry, and vigilant media scrutiny.

“Much as I hate the liberal press, you need a vibrant and independent press as a watchdog,” he said.

Pressed by a listener to say what such a press would look like, Shepard said: “A series of papers so that you get more than one point of view, with the resources to really do investigations. … I want to read newspapers that reinforce my biases and give me new factual arguments that I can use with my friends, but a vibrant and independent press will give you both sides of an issue.”

And in the midst of a fierce presidential election campaign, the speaker gave his own analysis of the much-discussed partisan divide. “You see red states and blue states, but the real teller is by ZIP code,” he said. “In every red state there are a couple of blue cities, and in every blue state there are rural sections that are red areas. The divide is really a rural-urban split.”