'HEWITT RESPONSE

In his December 20 piece in the Washington Post, the conservative columnist Hugh Hewitt suggests a way out of the Trump mess is the "Agnew Option". The hard-right columnist, also a graduate of Chapman Law School where suspected Trump co-conspirator John Eastman was Dean,-- sees a synchronicity between Agnew and Trump. But Hewitt misses points of difference that are so dramatic  they suggest his vision is a result of right-wing politics, not legal reasoning. 

As counsel for former Vice President Agnew, I see the following dramatic differences between the two cases:  

First, Hewitt -- whose bias is reflected by his statement that he is not yet persuaded there is evidence of Trump's criminality -- suggests that such a compromise is a way of avoiding the political and civil chaos that would result from a Trump indictment. Whatever sense that argument may have made some 12 months ago before the evidence of Trump's complicity was as overwhelming as it is today, it is now a non-starter. 

Second, comparing the Agnew nolo plea to one count of tax evasion to Trump's effort to rape the Constitution is like comparing the illicit use of a squirt gun during recess to the use of an AR-15 in a grade school massacre.  Recall please that Agnew was accused of what has become known as "pay for play", i.e. accepting money for official state appointments, while Trump is accused of an effort to destroy the Constitution of the United States of America. And while the evidence against Agnew was never more than not-yet-cross-examined verbal claims from those who had run afoul of Maryland federal prosecutors, the evidence against Trump is virtually on camera, and simply overwhelming – and the DOJ is not done yet. There can be no honest doubt about Trump's manifold effort to defy the Constitutional requirement of a peaceful transfer of power. Indeed, I suggest he has confessed as much when he recently continued to press his Big Lie by asserting that if there were a part of the Constitution that justified denying him victory of the 2020 election, then that part of our Founding Document should be 'terminated." There can be no "trade" for destruction of our democracy.

And there is also the difference of status. Trump is a civilian. While he has a corps of avid (rabid?) political followers, as the 11th Circuit recently made clear, he lacks any special status. He's just plain citizen Trump. Agnew, on the other hand, was vice president of the United States and had three years to go in his term of office at the time of the investigation. In the end, even the prosecution conceded that it would take 2 to 3 years to bring the Agnew case to trial during which time the country would suffer having a vice president who was a criminal defendant. (Impeachment would require 67 votes in the Senate and the Democrats had only 56. There is no evidence the Republican senators in 1973 had any more respect for Democratic House impeachments than they had for the two House impeachments during the Trump era.)

Next, the prosecution in the Agnew case was under great pressure to avoid pretrial proceedings that would potentially devastate the DOJ. Newspapers and other media made regular claims that they were receiving prosecutorial leaks of alleged Agnew criminal misconduct. The  "leak" issue was so serious that the Washington Post reported on September 5, 1973 that "the Attorney General has been told by news media representatives the DOJ has been the source of leaks about the investigation of Vice President Agnew." And subsequently  District Judge Hoffman, once he got a firm grip on the case, said basically the same thing to both Attorney General Richardson and to Henry Petersen  the Chief of the Criminal Division,  "Look,, someone on your team has leaked and you have to face that."

The result was Judge Hoffman's signature on an order I had drafted giving us the unprecedented power to take depositions of both the press and DOJ employees on the leak issue, That was almost a death blow to the prosecution. In its early responses to our leak claims, the DOJ had the FBI do an investigation of the issue. It showed there were 163 people in the Department of Justice and the Internal Revenue Service who knew of and about the Agnew investigation. Every single one of them had signed an FBI-crafted affidavit that they had not leaked or told anyone outside of the department of the Agnew matter. Obviously, many of them had lied. Indeed Maryland prosecutors admitted they had told husbands and wives details of the Agnew investigation. When faced with all this coming out in the depositions, Elliott Richardson would have had to deal with the unenviable task of deciding which of his prosecutors and staff he was going to prosecute for perjury. The pressure on the DOJ for a disposition that avoided that issue was enormous,

Finally, there was the remaining three-year term of the vice president. The count in the Senate made it extremely unlikely he was going to be convicted if impeached by the Democratic House. Under those circumstances, how could the prosecution go forward? Even in the event of a conviction, did the the government intend to incarcerate the sitting vice president? Was he going to have Secret Service protection in prison? If the president died, would the imprisoned vice president become an imprisoned president?  The situation was impossible. 

And added to all of this practical and political pressure was the serious Constitutional question we raised about whether a sitting vice president could be indicted, a question Solicitor General Bork declared to be "momentous and difficult." There was zero court precedent on the issue and persuasive wording in the Constitution that went our way. The DOJ's Office of Legal Counsel concluded the answer was a president could not be indicted but a vice president could ", a flakey response that has since been questioned as being rigged by Richardson's top aide. In any event, the DOJ faced the realistic possibility that an indictment of Vice President Agnew would be struck down by the courts. 

In the end, the Attorney General came to the conclusion that the game wasn't worth the candle and it was in the national interest to avoid the effort to prosecute the vice president. Judge Hoffman came to the same conclusion independently and for the same reasons. And so we settled.

Make no mistake. There is zero substantive comparison between the troubled Agnew bribery investigation and the unquestioned "Lock him up" Constitutional threat created by the former president's proven Big Lie conspiratorial un-American criminal conduct. Our democracy demands his prosecution and incarceration in the event of conviction. Nothing less will do. We are not changing our Constitution to pacify the Proud Boys and Oath Keepers.

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Much of the information in this opinion piece is found in my memoir, "The Client Decides", published in 2017.

Martin London

Of Counsel (Retired Partner)

Paul, Weiss, Rifkind, Wharton & Garrison 

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