October 20 forty-five years ago was also a Saturday night, one that became known in history as the “Saturday Night Massacre.”
It happened in 1973, when President Richard Nixon sought to take the investigative pressure off his administration as the Watergate scandal was heating up by firing special prosecutor Archibald Cox. Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus both refused to do the deed and resigned. The task was ultimately performed by the solicitor general, a little-known lawyer named Robert Bork, whom Ronald Reagan later unsuccessfully sought to appoint to the Supreme Court.
As we look back through the lens of time, several lessons and similarities with current events arise. The current sitting President is of course also the subject of an investigation by a special counsel named Robert Mueller.
As we look back through the lens of time, several lessons and similarities with current events arise.
Donald Trump’s firing of FBI director James Comey was seen by some as a modern-day Saturday Night Massacre. This time, though, since Attorney General Jeff Sessions had already recused himself, it was Deputy Attorney General Rod Rosenstein who appointed Mueller to the position of special counsel (just as Bork had been given the task of appointing Leon Jaworski to a similar role in 1973). Recent reports of Trump’s displeasure with Rosenstein have led many to fear another round of firings and exits could yet come.
Writing in The Progressive in April 1974, law professor Arthur S. Miller noted that a “political Justice Department tied to the White House has contributed to a distrust of our judicial system.”
“Americans who were shocked by last October's ‘Saturday Night Massacre,’ ” Miller wrote, “should realize that the episode merely illustrated how far the American system has deviated from [Sir Francis] Bacon's ideal [of uncorrupted justice]. In the wake of the sordid Watergate affair, the Department of Justice, charged with the solemn responsibility of furthering the rule of law, finds itself under heavy attack for having become unduly ‘politicized.’ An insistent cry is being raised in many quarters to take the politics out of the Department.”
But instead, as the recent Supreme Court nomination and confirmation of Justice Brett Kavanaugh illustrated, our judiciary has become more politicized than ever, and the courts are an active target of rightwing ideologues who want to further secure a political agenda.
Kavanaugh, interestingly could serve another purpose for Trump as well. In a 2009 article in the Minnesota Law Review, Kavanaugh offered a startling suggestion: “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” Such a law would be a great boon to a President being investigated on numerous fronts.
Another thing that came out of the backlash to the Saturday Night Massacre was the 1978 Ethics in Government Act—which includes the financial disclosure requirements that have plagued many members of the Trump Administration.
Just as Nixon sought to evade the Watergate investigation through accusations and stalling, so, too, has Trump sought to cast aspersions on the special prosecutor’s office—even claiming in an interview that he had “hundreds of photos” of Mueller and Comey “hugging and kissing.” But the appointment of politicized judges may ultimately be his best defensive move.
As Miller wrote in 1974, “The [Watergate Hearings, chaired by U.S. Senator Sam] Ervin, may help us find our way out of an intolerable situation, for we must face the fact that our present system of justice through politics—often corrupt politics—cannot stand much longer without eroding our constitutional democracy beyond the point of no return.”