A cynical nation learnt that the president is not above the law. He cannot lie and obstruct justice, in the name of his own exceptionalism. He must comply with a lawful order from a truly independent government watchdog. Astoundingly, the ruling was unanimous, including several justices the president had personally appointed. Zumagate? Well, yes and no – this paragraph actually describes Watergate. By SCOTT WALLACE.
I may be a mere American, but from living in South Africa for most of the past decade, I know that South Africans are familiar with our Watergate scandal. The concept of adding “gate” at the end of any other word has become a universal signifier of scandal. The Nkandla saga achieved this status as far back as 2009, coined by the Mail & Guardian at the outset. There’s been Guptagate, FIFAgate, and hundreds of gates around the world, from politics to journalism to sports – from Tigergate (the golfer’s infidelities), to Porngate (Indian legislators watching pornography during government proceedings), and ultimately, Scandalgate (the rampant overuse of “gate” to signify a scandal).
But if you delve deeper into the real Watergate, the parallels to Nkandla and last week’s Constitutional Court ruling are quite overwhelming. As a young law student interning in Congress, I was riveted by every step of the unfolding Watergate scandal, appalled by the arrogance of power, dubious that President Richard Nixon would ever be held accountable, but ultimately elated outside the US Supreme Court on that sweltering summer day in 1974, when Nixon was ordered to release his tape-recorded conversations, which ultimately proved his sordid cover-up conspiracy and led to his disgrace and downfall. Consider:
The Watergate scandal started with a minor “third-rate burglary.” In the heat of President Nixon’s re-election campaign in 1972, some shady low-level operatives in his campaign organisation (called the Committee to Re-Elect the President, or “CREEP”, amazingly) hatched a dim-witted plan to break into the opposing offices of the Democratic National Committee in the dead of night, to rummage through confidential documents and install wiretaps. The DNC offices were in the posh new Watergate Hotel.
There is no indication that Nixon knew anything about the initial break-in (a few days afterwards he was recorded candidly asking his top aide, “Who was the asshole who ordered it?!”). Publicly, he unconditionally denied that he or anybody in his administration had any involvement. The actual burglars were promptly convicted and sentenced to decades in prison. But the reality was that the burglary was deeply tied to and funded by Nixon’s re-election campaign, and both he and his top aides worked feverishly to conceal that involvement and prevent it from interfering with the President’s re-election.
In the short term, it worked. Despite brilliant investigative reporting by the Washington Post in the months before the election, revealing troubling evidence of White House involvement, Nixon was re-elected in one of the biggest landslides in US history.
But the Washington Post’s legendary investigative reporters, Bob Woodward and Carl Bernstein, persevered. They had huge help: a whistleblower identified only as “Deep Throat” leaked a steady stream of astounding revelations tracing the flow of secret money and cover-up schemes ever closer to the president. Deep Throat turned out to be the deputy head of the FBI, America’s fiercely independent criminal investigation agency – South Africa’s equivalent would be much more the Scorpions than the Hawks.
The trickle of revelations became a torrent. The cover-up was traced to Nixon’s top aides, leading to their resignation or sacking. But Nixon continued to deny any personal involvement. Pressure built. The US Senate convened a special committee to uncover the truth. The hearings were televised, and became the most riveting reality TV show America had ever seen.
The biggest bombshell from the hearings: a minor White House functionary named Alexander Butterfield testified that every conversation involving Nixon was tape-recorded.
Nixon tried to tamp down the furore. Under pressure from the Senate, he ordered the Attorney-General (a new one, replacing the previous ones tainted by their Watergate roles) to appoint a “Watergate special prosecutor”. The attorney-general picked a retired Justice Department official of unquestioned integrity named Archibald Cox, with an independent mandate to go wherever the evidence led. To quench the demand for the audiotapes themselves, Nixon released typed transcripts, with plenty of omissions (for reasons such as protecting “national security”) and “[expletives deleted]”. Even the sanitised transcripts, cleansed of actual evidence of criminal acts, appalled the nation, revealing a coarse, vindictive and petty man, driven by nothing stronger than an instinct for self-preservation.
Special prosecutor Cox subpoenaed the tapes. Nixon refused, on the theory of “executive privilege” – essentially, that the president is above the law. In a fit of pique, he ordered the Attorney-General to sack Cox. The Attorney-General refused, and resigned in protest. Nixon ordered the Attorney-General’s second-in-command to sack Cox. He refused too, and resigned. Nixon finally found an official willing to sack Cox, and Cox was sacked. A popular bumper sticker read: “Impeach the Cox sacker”.
[Interesting footnote: the Attorney-General who resigned rather than sack Cox, Elliot Richardson, went down in history as one of the most principled public servants ever. The official who finally agreed to sack Cox, Solicitor-General Robert Bork, went down in flames, when his nomination to the US Supreme Court (by Republican President Ronald Reagan – yes the same one who vetoed sanctions against South Africa, preferring “constructive engagement” with the apartheid regime – was rejected by the US Senate some dozen years later, on grounds that he was too brazenly ideological and ambitious.]
Under immense public pressure, Nixon promptly appointed a replacement, a respected old Nazi war crimes prosecutor named Leon Jaworski, who had supported Nixon politically and thus might not cause so much trouble. But Jaworski again subpoenaed the tapes. Nixon again refused, and the case quickly went to the highest court in the land, the United States Supreme Court.
The day that the Supreme Court issued its ruling in United States versus Nixon, July 24, 1974, was, I think, as momentous in American history as March 31, 2016 will be in South Africa. A cynical nation learnt that the president is not above the law. He cannot lie and obstruct justice, in the name of his own exceptionalism. He must comply with a lawful order from a truly independent government watchdog. Astoundingly, the ruling was unanimous, including several justices whom Nixon had personally appointed. The court, like the nation, had had enough.
The end came quickly. Nixon surrendered the tapes. They included “smoking gun” proof that he had personally ordered obstruction of investigations, and authorised bribery to silence the burglars. His staunchest supporters in Congress abandoned him. The US House of Representatives approved articles of impeachment – essentially, the filing of criminal charges. But before the Senate could decide whether to “convict” him in an impeachment “trial” (the final stage of impeachment in the US), Nixon resigned. Ultimately, 69 government officials were prosecuted for criminal acts, and 48 were convicted. Nixon’s disgrace was thorough.
The nation was revolted, and relieved. Upon being sworn in as the new president, Gerald Ford declared, “Our long national nightmare is over.”
Afterwards, the winds of reform swept through America. Nixon’s political party, the Republicans, now synonymous with corruption, suffered huge losses in the November 1974 midterm elections (that is, for Congress but not the presidency). New President Ford used his power of executive clemency to forgive Nixon from any possible criminal punishment (many suspected that Nixon had coerced this promise from Vice-President Ford in return for Nixon resigning and catapulting Ford into the White House). Voters were not so forgiving; Ford was rejected for re-election, making his presidency one of the shortest in American history.
All kinds of laws were passed to ensure that such abuses could never occur again. To prevent Nixonian surveillance and harassment of political enemies, Congress passed new privacy laws, and laws greatly restricting domestic surveillance by intelligence agencies. To ensure government transparency, the Freedom of Information Act was strengthened, and government officials were required to disclose all of their financial affairs and entanglements. Presidential powers to unilaterally suspend or change laws were limited. To enforce all of this, an Office of Independent Counsel was created, to ensure that whenever government officials went wrong, they could be held accountable by investigators and prosecutors immune from sacking by the suspect politicians.
To curb the uncontrolled torrent of secret money which had fuelled CREEP’s campaign of covert operations and “dirty tricks” (Nixon went down in history as “Tricky Dick”), Congress passed strict new campaign finance laws, setting caps on the amount that individuals and corporations could contribute to a political campaign. There was a total ban on contributions from outside the US. This was the easiest part, the “low-hanging fruit”. Who in their right mind would want their political leaders to be financially beholden to rich people from some other country? Today, to the vast majority of democracies in the world which have done the same, it is simply baffling that South Africa has not.
What lessons did America learn from Watergate? I think I can sum it up in one word: “independence”:
- Independent investigation: the fearless criminal investigators in the FBI who cared nothing about politics but everything about the law. Without Deep Throat – a principled FBI official secretly feeding the truth to the media and triggering all the legal machinery of accountability – Nixon might have remained the leader of the free world.
- Independent prosecutors: Cox and Jaworski, even though subject to harassment and sacking by the president, placed law above political fealty. Post-Watergate reforms in the federal government and every state now ensure that when high government officials are the suspects, the prosecutor will be totally independent and immune from political retaliation.
- Independent media: without fiercely independent investigative reporting, Nixon’s tawdry conspiracies might still be hidden. Woodward and Bernstein are to this day the gold standard, taught in journalism schools everywhere.
- Independent judiciary: Although US presidents get to appoint justices to the Supreme Court (subject to a majority of the US Senate agreeing), they have absolutely no power to sack them. Justices serve as long as they wish, unless impeached. Many have disappointed the presidents who appointed them, liberated by the freedom to put politics aside and hew only to the law and the Constitution.
South Africa’s Moment of Truth, on March 31, 2016, could not have happened without the hard work of the independent public protector, who never wavered in the face of vicious attacks on her integrity and legitimacy. It could not have happened without a dogged and independent media. And it could not have happened without a truly independent judiciary, committed to the rule of law more than loyalty to the politicians who elevated them.
The fact that the ruling was unanimous is more than refreshing; it is a thunderclap, a shout from the rooftops, emphatically and purposefully directed to all people of all political persuasions, that the Constitution lives. Separation-of-powers lives. Accountability lives. And the president is not above the law.
The question now is: what next? Nixon lasted exactly 16 days after the Supreme Court ruled that he was not above the law. Is Zuma that badly damaged? Whether he survives or not, will the people feel empowered to demand reforms? The office of the public protector has great independence, but it has no law enforcement or prosecution power, and the national offices with those powers have no independence.
Watchdogs need teeth. Will the people’s elected representatives see the need for some sort of criminal investigation and prosecution capacity which is immune from political interference? Will they put an end to the unlimited and invisible flow of money into politics? Will they require politicians and parties to disclose all their financial affairs, to avoid any possible conflict of interest or self-dealing?
The Constitutional Court’s ruling offers great hope that South Africa’s democracy can emerge from this trauma stronger than ever. DM
Photo: President Jacob Zuma (Sapa); President Richard Nixon (EPA)
Daily Maverick © All rights reserved