The Volokh Conspiracy
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Seven Pages Of Nixon Grand Jury Testimony Reveal The Real Threat Of the Deep State
Nixon's enemies within his own administration were spying on and trying to subvert the elected President.
The Watergate Special Prosecution Force (WSPF) did not terminate after President Nixon resigned August 8, 1974. Indeed, the prosecutors continued to investigate many facets of the Nixon presidency for some time. Some of these actions are stunning. Geoff Sheppard posted a memo that has to be seen to be believed: In September 1974, Phillip Lacovara suggested to Special Prosecutor Leon Jaworski that Ford's pardon of Nixon violated WSPF regulations, and was thus invalid. While the President usually has the absolute power to grant pardons of federal offenses, President Ford constrained his own powers by agreeing to the WPSF regulations. You wonder where Jack Smith and Robert Mueller got the idea that everything the President does is obstruction of justice?
Speaking of obstruction, there is a fascinating article in the New York Times Magazine by James Rosen, titled "The Secret History of the Deep State." He reveals seven pages of never-before-seen grand jury testimony from 1975 between former-President Nixon and WSPF prosecutors. The story is very long, and I cannot do justice to it in a single post.
The biggest takeaway is that an Navy enlisted man, Yeoman Charles Radford, who worked in the White House, was a mole. No, not for the Soviets, but for the Joint Chiefs of Staff. He would routinely make copies of documents from Nixon administration officials and share them with people in the Pentagon. Radford would pilfer documents from Henry Kissinger and Alexander Haig and make copies of them.
Selected to accompany General Haig, Kissinger's deputy, on trips to Vietnam and Cambodia, Radford deployed all his gifts for theft, including raiding the general's briefcase. According to "Silent Coup," Radford turned over "a huge government envelope overflowing with hundreds of pages of documents." . . .
In June 1971, having received superlative reviews from General Haig, Radford was chosen to accompany Kissinger on a tour of Asian capitals. On a stopover in Pakistan, the accompanying press were told falsely that Kissinger had fallen ill; in fact, he flew secretly to Beijing to finalize Nixon's trip. "Don't get caught," warned Radford's direct supervisor, Adm. Robert Welander, ahead of his departure. Once again, the yeoman snatched every document within reach, including rifling Kissinger's briefcase. Radford collected so much material that he enlisted a contact at the embassy in New Delhi to ship it back to the Pentagon via secure diplomatic pouch.
The purpose of this espionage was to check the incumbent president from taking actions that the deep state opposed. You have to read through a lot of background to get to this shocking takeaway. Here is the key excerpt, where Nixon reveals to the prosecutors about the deep state "can of worms":
That's when Nixon warned the prosecutors not to open "that can of worms," adding, "There is even more, because [Radford] not only ——"
Ruth, the lead prosecutor, interjected: "We are not opening it up."
"Yeoman Radford was not only there," the ex-president persisted, "but he was a direct channel to the Joint Chiefs of Staff."
There it was, finally — the secret Nixon had sought to keep under wraps: It was not the far left that most actively sought to sabotage the Nixon-Kissinger foreign policy but the hard right, not lowly pencil-pushers in the civil service but the most senior commanders at the Pentagon.
The prosecutors had heard enough. They did not want Nixon to elaborate. Jay Horowitz, the last questioner, cut in.
"Sir, if I might take us back now to ——"
Nixon would not be deterred.
"This indicates to the members of the grand jury, if I might address them for a moment, why it is that" the Radford project "had to be top secret." He added: "Particularly, I didn't want the Joint Chiefs of Staff involved."
Nixon had no intention of exposing the affair's full depths; even here, he wished not to join in vilification of the services, something that was pervasive when Vietnam veterans were often jeered on return to U.S. soil as "baby killers."
After some additional questioning on other subjects, Horowitz consulted the grand jurors, then declared, "No further questions."
Ten minutes later, with the grand jurors and the stenographer hustled from the room, Ruth and Davis conducted a final interview with the witness. The prosecutors' memos, previously unpublished, show that they interrogated Nixon on four additional topics, including proposals, captured on the tapes but never enacted, to hire thugs to attack antiwar demonstrators.
Do you see what happened? Nixon was fully aware that there was a deep state in his own administration. He employed the "Plumbers" to plug those leaks. But he would only reveal the depth of the deep state before a secret grand jury investigation. The Watergate Prosecutors, who were part of the DOJ deep state, did not want Nixon to talk about the Pentagon deep state. And for five decades, this testimony was sealed, until Rosen reported on it.
The Deep State was real in Nixon's time:
Publication of the classified segment of the ex-president's grand jury testimony represents a major addition to the historical record of the era of Vietnam and Watergate. Its significance extends to the current day.
The issues that animated the "deep state" against Nixon and Kissinger were rooted in the Cold War. But the frictions inherent in the making of national security policy, most acute in times of war, are perennial. Moorer-Radford exposed a hidden feature of the American political system that endures: When excluded from their spheres of interest, entrenched bureaucratic forces will, almost as a biological reflex, respond aggressively.
The Joint Chiefs' spying formed only one prong of the campaign against Nixon, the most spied-on president in modern times. Declassified documents and scholarship published since 1974 have established that the F.B.I., under its director, J. Edgar Hoover, spied on Mitchell, the attorney general, and that the C.I.A. detailed its personnel to various units associated with Nixon, including the Watergate burglary team and "components intimately associated with the office of the president," as the agency admitted in 1975.
Rosen closes his piece by drawing the obvious parallels to the present day:
Mr. Trump has long expressed admiration for Nixon. As early as 1982, the rising tycoon told the disgraced ex-president, "I think you are one of this country's great men." Not many prominent people in that era expressed such a sentiment. Both men achieved success at young ages. Both men, at once craving and scorning the approval of the elites, remained resentful of the establishment that they came to lead.
They differ in two crucial respects. Mr. Trump's purge of the federal government since returning to the presidency has displayed a ruthlessness toward the perceived "enemy within" that Nixon, despite similar inclinations, could never conjure — even when faced with criminal insubordination.
Mr. Trump also appears on track to complete his second term.
In my recent Civitas column, I explained how Trump is finishing Nixon's aborted second term. The same sort of forces in the government trying to subvert a President who won 49 states are trying to subvert Trump. But Trump is fighting back in ways Reagan would not to tame the bureaucracy. If nothing else, I think Trump has pierced the veil of the so-called neutral civil service. I don't think anyone actually believes that fiction anymore. Those who work for the executive branch should be accountable to the head of the executive branch, and not their own agendas.
I'll close with one other observation from Rosen's article. He explains how Nixon worried that his own foreign policy agenda might be construed as obstruction of justice:
Next came a double-barreled blast that only Richard Nixon could fire off: He admitted breaking the law and, in practically the same breath, shared something that Chairman Mao had told him.
"I suppose that it could be said that I obstructed justice by not immediately calling up [the Justice Department] and saying, 'Prosecute him [Radford], and, in this case, Anderson,'" Nixon said. "The reason that we couldn't prosecute and wouldn't was that, if we did," he added, Radford "could expose these highly confidential exchanges we were having to bring the war in Vietnam to a conclusion, and particularly the exchange in China.
"I remember when I saw Mao," Nixon continued. Mao called himself the "most famous or infamous communist in the world" and Nixon "the most famous or infamous capitalist in the world." What brought the two men together? Nixon recalled Mao asking. "History brings us together in our interests," Mao said. Nixon persuaded Mao to accept a defense alliance between the United States and Japan.
"Yeoman Radford had all of this information and if he had been prosecuted, it was my opinion that there was a very great risk, because of his obvious emotional instability, that he would blow the whole thing. … The war in Vietnam would have continued for a while longer. … I had to make a decision." At this point, the CLASSIFIED section ended. Seeking a final flourish, the old politician wanted the audience to know that except for the most infamous wiretapping of all, at the Democratic National Committee headquarters in the Watergate complex, the Plumbers' work had involved vital national security interests.
Long before Trump v. United States, Presidents understood how the obstruction of justice statute should not be read to control the President's Article II powers. I made this point in a 2017 article for Lawfare, with a direct connection to Nixon. Even today, people would indict the President for exercising his powers if he has the wrong motivations.
At some point, I plan to write an article titled The Irrepressible Myth of Nixon v. United States. I want to walk through every facet of that decision--including the indefensible jurisdictional analysis--and all the chaos it caused. A followup might be The Irrepressible Myths of Robert Mueller and Jack Smith.
