The bell tolls for post-Watergate ethics reforms

The post-Watergate era in American governance died last month, fatally wounded by a triumphant president-elect scornful of norms, a victorious party happy to acquiesce, and a country that has moved past the scandals of a president who left office in 1974.

The deceased had just turned 50 years old and had been ailing for several years. Services have not been scheduled but may play out as part of the confirmation hearings to be held next month in the Senate.

The reforms ushered in by the misdeeds of Richard Nixon and his allies had a good half-century run. The Supreme Court weakened them initially in 2010's Citizens United v. FEC decision and again in 2014's McCutcheon v. FEC, which tossed out limits on campaign contributions. Donald Trump then pushed them beyond the breaking point during his first term, when he became the first post-Nixon president not to disclose his tax returns or place his assets in a blind trust.

Now, in his transition to a second term, he has refused to let the FBI vet his appointees, raised the possibility of bypassing the Senate's consent to those nominees, and has thus far rejected limits on contributions to his transition operation, as well as the disclosure of donors' names.

“What we saw during the first Trump administration was an effort to find the weaknesses in the post-Watergate reforms and get around them,” said Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington. “What we’re seeing now is, in some ways, the next logical step, which is not so much finding the loopholes as just blowing through those reforms entirely. … It’s just ignoring them entirely and seeing what you can get away with.”

No Trump action better captures this than his decision to turn to private vetting for his appointees, cutting the FBI out of its post-World War II role in investigating nominees and sharing its findings with the Senate.

“We’re all products of the post-Watergate era,” said Dan Meyer, a leading national security lawyer and a partner at Tully Rinckey in Washington. Meyer said both parties accepted the need for full FBI investigation of high-level presidential nominees in the wake of the Nixon presidency. While the FBI had been involved in vetting before the 1970s, “we got more serious about it after Watergate," he said. "We got more transparent. We started seeing more corruption scandals, so we all agreed to this system because it made life easier in Washington.”

Meyer said it was the full vetting of nominees that “allowed people to trust one another in government."

"If everybody’s subjected to the strict background checks, everybody has the same standards and there is a baseline for trust between the branches and within the executive branch.”

Trump had resisted signing any of the normal agreements in a transition process until finally relenting last week and signing a Memorandum of Understanding with the Biden administration. That permits the current officials to communicate with their would-be replacements and hold meetings in the agencies. But the president-elect continues to refuse to sign other critical MOUs, including one with the Justice Department that would pave the way for the FBI to get involved in security clearances. His refusal also prevents the current administration from sharing classified information with appointees and keeps the Trump people from getting secure computers.

“Because of this, they could still be using their own private servers and Gmail,” said Aaron Scherb, senior director of legislative affairs at Common Cause. “That just does not have the same level of security standards as government servers do. There could be national security implications. There certainly are transparency and ethics considerations.”

Bookbinder said the failure to use the FBI is a blow to a bipartisan process that has worked well for decades. “It’s trusted by senators of both parties,” he said, citing his own experience working for the Senate Judiciary Committee from 2005 to 2013, including as chief counsel for criminal justice. He was heavily involved in nominations.

“If you have some kind of private security doing this, there’s just no guarantee that the process is going to be done in an objective or consistent or thorough way or that the Senate will be getting all the information they need to make the right decision,” he said.

Not using the FBI, he said, “is an alarming sign that we may be entering a period where it’s really much more about just the power of the executive.” That can't happen, he said, if senators continue to heed the lessons of Watergate.

“People forget events that precipitated these reforms,” he said. “Also, things change in terms of how government works and how Washington works. The reforms that were effective several generations ago just aren’t sufficient for current realities. So this is a natural change.”

Scherb also noted the evolution. “People have very short-term memories, unfortunately. It often takes a scandal to catalyze change. But then we backtrack, and when we backtrack, it is hard to tell what the full implications will be.”

In the incoming Senate, only 28 of the 100 members were older than 21 when Watergate occurred. Sen. Bill Hagerty was 14 when Nixon resigned in disgrace. Today, he brushes off the need for FBI vetting of Trump’s nominees. “I don’t think the American public cares who does the background checks,” he insisted on ABC’s This Week on Nov. 24, adding, “What the American public cares about is to see the mandate that they voted in delivered upon.”

Hagerty is not alone. “Donald Trump has consolidated power over his party and has chipped away at checks and balances,” Bookbinder said. “It’s unfortunate that you have members of Congress who have signed off on that even when it means ceding some of their own constitutional power.”

Not using the FBI does give Trump “plausible deniability” if there is a later scandal, said Meyer. “He doesn’t want documentation from the FBI so that somebody can say then that he knew. … Because if they fail, it goes back to you and you’re stuck with the pick that you made. Without an FBI report, Trump can say, 'Oh, I didn’t know about that' and then move on to the next candidate.”