Compelling Constitutional Conversations
- by Christopher Naughton
"I want it implemented on a thievery basis. Goddamit, get in and get those files. Blow the safe and get it!" - Richard Nixon 1971
It’s 1971. Richard Nixon has a problem. A problem the Trump administration may now be facing.
First, let’s go back to 1968. Johnson decides not to run for re-election. Mostly it’s because of Vietnam. And now, the war is weighing down his vice president— Hubert Humphrey— whose squaring off against Nixon. And Nixon is cruising in the polls.
But weeks before the election, LBJ stops the bombing of North Vietnam. He gets Hanoi to agree to sit down and talk with Saigon. Even the Viet Cong are invited to the table. For the first time, Peace looks possible. Humphrey’s numbers rebound. He's gaining on Nixon.
Three days before the ’68 election, South Vietnam president General Thieu said his government would not attend the peace talks after all. At Nixon’s behest, Anna Chenault, a representative of his campaign, covertly told President Thieu to stay way from the talks— that he’d get a better deal from Hanoi once Nixon was in the White House.
The Nixon Foundation vehemently denies this, although historians, as well as the Nixon Oval office tapes, seem to confirm.
According to George Will, during the Senate Watergate hearings in 1973, Walt Rostow, who had been Johnson’s national security adviser, gave the head of the LBJ library a sealed envelope to be opened in 50 years, saying: “The file concerns the activities of Mrs. Chennault and others before and immediately after the election of 1968.” Rostow died in 2003.
LBJ got wind of the Chennault rumors, suspecting Nixon of interfering with U.S. foreign policy— a violation of the Logan Act — making it a crime for any unauthorized person to influence or negotiate with a foreign power to undermine or defeat a current U.S. administration’s position.
Johnson called his friend Republican Senate Minority Leader Everett Dirksen. And he didn’t mince words.
President Johnson:
“I am reading their hand, Everett, I don’t want to get this in the campaign."
Sen. Dirksen:
“That’s right."
President Johnson:
“And they oughtn’t be doing this, this is treason.”
Sen. Dirksen:
“I know.”
President Johnson:
“I know this— they are contracting a foreign power in the middle of a war!”
LBJ never went public with his suspicions. And Nixon beat Humphrey that November by an eyelash.
Fast forward to 1971. The New York Times— and soon after The Washington Post— publish the “Pentagon Papers”— the focus of Steven Spielberg’s latest movie “The Post.” It’s the story of Daniel Ellsberg leaking the Defense Department’s classified history of U.S. involvement in Vietnam to the press. And while Nixon didn’t mind his predecessors being placed in a bad light, he feared leaks by Ellsburg or others about his own Vietnam policy— both present and past— might come to the surface.
From Ken Burn’s PBS “Vietnam” Documentary (2017), narrated by Peter Coyote:
“Nixon was told that the safe at another think tank, the Brookings Institution in Washington, D.C. contained files that might reveal the secret role his campaign may have played in torpedoing the peace talks on the eve of his election three years earlier, which President Johnson had then considered treason."
The President created a secret investigative unit within the White House, later to become known as ‘The Plumbers.’ They broke into Daniel Ellsberg’s psychiatrist’s office and later, they’d do the same thing to Democratic Party headquarters at the Watergate. But in June of ’71, the President had another target for them.
Again, from Ken Burn’s PBS “Vietnam” Documentary (2017), narrated by Peter Coyote:
“Nixon wanted his plumbers to break into Brookings, crack the safe and remove the file… [t]he Brookings break-in would never take place, but Nixon’s obsession with his enemies would be the undoing of his presidency.”
If Nixon had fought impeachment instead of resigning, would charges of violating the Logan Act— and treason— have become a factor in his virtually certain downfall?
The Logan Act almost certainly is a factor in Robert Mueller’s investigation.
Michael Flynn’s guilty plea alleges that a “very senior member” of the Trump transition team interfered with ongoing U.S. policy— matters involving Israel at the UN… and sanctions the Obama administration had placed on Russia.
Scott Shackford of Reason magazine says “The Logan Act is a dumb law, is about punishing political adversaries and will not take down Trump’s administration.” Others concur.
But if a member of the Trump team interfered with or tried to persuade a foreign power to thwart a sitting president’s foreign policy, a charge of treason for violating the Logan Act— among other charges Mueller is likely considering — is not an unreasonable conclusion.
And may now be causing President Trump some of the same discomfort that Richard Nixon felt back in 1971.
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Christopher Naughton is the Host and Executive Producer of The American Law Journal. On the air since 1990, the Emmy award-winning program examines consumer, business and Constitutional law issues.