Heather Cox Richardson:

From CAFE and the Vox Media Podcast Network, this is Now & Then. I’m Heather Cox Richardson.

Joanne Freeman:

And I’m Joanne Freeman. Today, we’re going to be talking about a topic that very naturally and very obviously grows from all of the news about Donald Trump’s federal indictment and arraignment in Florida in recent days. Now, there’s been a lot of coverage of all of the legal and political implications and any variety of ways of approaching this by looking at the National Archives and the Presidential Records Act.

What we’re interested in looking at today is something that is at the heart of this entire controversy and that doesn’t only exist now, but that extends back in time, and that is the question of a president’s relationship with his or her lawyers. Because that’s some of what we’re looking at now is the former President Trump has his own attorneys and actually has been someone who, throughout his life, has been very active, very litigious, very eager to promote his own interests and smack at and rip apart anybody who gets in his way.

To make sense of the way that Trump thinks about lawyers, even once he became president, it’s useful to look back at his relationship with Roy Cohn. In the early 1970s, he very famously employed Roy Cohn, who was a lawyer and really a political fixer of sorts, who had been the top aide to Senator Joseph McCarthy during the Army-McCarthy hearings.

And he began to represent Trump after Trump was sued by the Department of Justice for discriminating against Black applicants in violation of the Fair Housing Act. And there’s Cohn coming forward, slashing, ripping and acting on behalf of Trump. And Trump then said of Cohn in 1980, “All I can tell you is he’s been vicious to others in his protection of me. He’s a genius.” So, the question that we’re interested in exploring today is what do presidential lawyers do?

If you think about all of the complications and all of the implications and all of the wild charges bouncing around right now, it’s very apparent that legal counsel will be vitally important, both to whatever Trump does or doesn’t do and to what the ultimate outcome is. And it’s that executive relationship between the national executive, the president, and lawyers that we really want to explore.

Heather Cox Richardson:

Of course, I’m over here making notes of the words “lawyerly figures,” which seem to me to be a fabulous name for a rock band.

Joanne Freeman:

Lawyerly figures.

Heather Cox Richardson:

So, I’ll be back in a couple hours. One of the things that helps me to think about this is to think about the different categories of lawyers and the law that swirl around the presidency. The way I think about it is that there is the law, the body of rules under which we live. There is the presidency, the office of the presidency, and then there is the president. And we have the law. We have the office of the presidency defended by the White House Counsel.

And then, the president himself defended by the presidential lawyers. And I just made it sound really neat and clean, but the reality is it is not neat and clean because we are talking about the body of law and the person who has taken an oath to uphold the body of that law, but who is also both a politician when we’re going to be talking about that and has personal interest in the way the laws are interpreted or not.

So, there’s a lot of confusion, but the confusion over the lawyers and the law and the president is actually a much larger story about the rules under which we live and the system of government under which we live.

Joanne Freeman:

As you just suggested, Heather, when you read about what these various kinds of lawyers and various kinds of counsel are supposed to do, it does look very neat and tidy. But for example, the White House Counsel, and we’re talking today about the president’s personal lawyers, but the White House Counsel is charged with providing legal support to the office of the presidency.

So, the president and the presidency are the client as well as some of the White House staff. But you can imagine how it would be hard and in some cases impossible for the counsel to the president to separate obligations to the institution from the demands of loyal service to the flesh and blood individual who is holding the office. So, you’re talking about the president’s personal lawyers, we’re talking about the White House Counsel.

We haven’t even talked about the Attorney General and Department of Justice. There are so many levels and layers of lawyers and justice for very good reason because you’re talking about legislation, you’re talking about constitutional law, you’re talking about setting precedents, you’re talking about linking up with past business and past precedents.

And then, on top of all that, you’re talking about just generally speaking presidents who want counsel of different kinds, including from, as we’ll be talking about today, people who, originally in the 19th century, are really informal advisors more than anything else. And then, in time, the Office of White House Counsel is created, but even then that remains a very ill-defined kind of amorphous position.

Heather Cox Richardson:

The White House Counsel is fairly new. The first person to hold the position was Samuel Rosenman. He held it in 1943 for President Franklin Delano Roosevelt, coming from a job as a speech writer for Roosevelt. But until the Nixon administration, that counsel was effectively a general advisor that had very little to do with legal policy.

And this is going to reflect the history that we’re going to be talking about in a minute, too. It was actually under Richard Milhous Nixon, who the role started to change under his White-

Joanne Freeman:

So many things changed under Richard Milhous Nixon.

Heather Cox Richardson:

I was going to say, yeah, really.

Joanne Freeman:

Well, there’s an example though. Suddenly, norms are violated to a drastic degree, and everyone goes, “Whoa, we need to put up some rails, some guards here,” and so much changes.

Heather Cox Richardson:

And the White House Counsel that got in trouble under Nixon is John Dean, who tried to turn the role into a more active position and a much more lawyerly position. So, if that’s where the modern concept comes from, the idea of a private lawyer is an older concept, and it’s what we really wanted to talk about today.

Because it’s clear that the former President Trump, if he understood the difference between White House Counsels and personal lawyers and even the attorney general, he did not ever articulate that difference. He seemed to feel that they were all expected to act like his own personal attack dogs.

Joanne Freeman:

And that’s consistent with what one might call his brand, right? He always, in one way or another, spoke of various aspects of the government and the country when he was president as being his.

Heather Cox Richardson:

As being his, and of the law as being something to weaponize against opponents.

Joanne Freeman:

Now, in the case of the Florida indictment, there’s evidence that Trump pressured his lawyers to help him obstruct justice. And obviously, this is still unfolding. But according to the notes of one of Trump’s lawyers, Evan Corcoran, Trump asked Corcoran, “Wouldn’t it be better if we just told them we don’t have anything here?” And also, “Well, look, isn’t it better if there are no documents?”

There he is supposedly creating a situation. Let’s pretend X to his lawyer or one of his lawyers who has taken notes on him. That’s going to come forth now as evidence. And what do you do if you have a president who is asking his lawyer to help obstruct justice? And you’ve got evidence of that.

Heather Cox Richardson:

And we were talking before the episode about why certain presidents have turned to lawyers and put them into key places that don’t actually need a lawyer. And one of our wonderful producers was pointing out the fact that under attorney-client privilege, those conversations can be shielded from legal investigations unless it can be proven that there was a crime being discussed.

The crime-fraud exception to the idea of attorney-client privilege means that if in fact you can prove to a judge that a client used a lawyer to further a crime, you can have access to that information. But if you can’t do that, those conversations are covered and hard to get at. But of course, Trump’s starting to trouble with his lawyers before. It’s actually another Trump lawyer who got him into trouble earlier, and that of course is Michael Cohen.

Michael Cohen was Trump’s former lawyer and his fixer. And he is the chief witness in the Manhattan district attorney’s indictment of Trump for falsifying business records in connection with the hush money payments he made to Stormy Daniels. People are focusing on those payments and they’re focusing on Stormy Daniels, the adult film star actor, as being the centerpiece of that story.

But the centerpiece is actually the fact that this was election fraud. This was an attempt to mess around with our election systems. The fact it’s got sort of colorful trappings around it tend to hide that it’s a really important case about our democracy.

Joanne Freeman:

And again, it centers on this point that we’re talking about today, which is the role and significance of lawyers acting for the president and what they can and can’t hide and what they can and can’t do and what happens when it’s exposed that illegal or improper things are happening.

Heather Cox Richardson:

The first case we’re going to take up is that of Abraham Lincoln, who himself was a very good lawyer. So, he’s not going to be turning to legal counsel to get him out of scrapes for example, but he is going to be turning to other lawyers for political reasons.

He was a consummate politician and recognized early on that if he were going to bring behind him constituencies that really didn’t trust what he was doing in the White House at a time of insurrection, which required him really to increase the powers of the president, he was going to need to bring legal counsel on board, especially legal counsel that didn’t agree with him.

Joanne Freeman:

If you’re at a time of what eventually becomes civil war, you don’t want people sitting around in a room who all agree with you because you’re talking about the fact that whatever you do as president now has two very different ways in which it might be interpreted. And you need someone to be able to help you interpret how the other side or how people who are opposed to you might see it.

And that’s part of the case of what we’re about to be talking about, which is one of Lincoln’s lawyers during his presidency named Reverdy Johnson. The relationship between President Lincoln and Reverdy Johnson is a great example of the sort of pushing and pulling and tug of war between information that presidents need, information that presidents receive from legal counsel, disagreeing, agreeing, opponents weighing in and suggesting things that shouldn’t be done.

So, it’s a great example of the kind of messy but useful relationship that can happen between presidents and their lawyers. Now, Johnson, he was born in Annapolis, Maryland in 1796. And he became wealthy as a lawyer in Baltimore in the 1820s. He represented the Baltimore and Ohio, the B&O railroad, in its early efforts to build a railroad through Washington. And he served them actually for more than 50 years.

He then becomes a leader in the growing Whig Party. He supports Henry Clay’s 1844 presidential candidacy. He becomes a senator from Maryland that same year. After his term in the Senate, by this point, he’s a Democrat because the Whig Party has fallen, and he serves as President Zachary Taylor’s Attorney General for 16 months.

Heather Cox Richardson:

So, his history is really significant here because he is a very prominent lawyer. The B&O is still in on monopoly games, isn’t it? It’s one of the four.

Joanne Freeman:

It is.

Heather Cox Richardson:

Yeah. Because at the time the B&O was a central railroad artery, he’s very well politically connected, and he’s a member of the Whig Party. In being a member of the Whig Party, he is a colleague of Abraham Lincoln’s who was also a Whig, somewhat unusually considering where he came from, but he’s also incredibly well politically connected.

And that’s going to matter because what’s going to happen is Lincoln is going to use Johnson not only to get feedback on his own legal ideas about the way to prosecute the war, but he’s also recognizing that Reverdy Johnson is going to be in places where he can disseminate Lincoln’s ideas. So, there is a public and a political nature to Lincoln’s use of lawyers like Johnson. As I say, he’s not the only one he uses.

He stands out largely because he really is a member of the political opposition to advance a political stance, to push an idea, get feedback, and then say, “But this is really what I’m going to do and here’s why,” with the hopes that that’s going to bring some populations that might otherwise throw their hands up and say, “What on earth is that man doing,” around to say, “Oh, we get it. This is what he’s trying to accomplish.”

Joanne Freeman:

While at the same time that Johnson indeed is being used in this capacity, he’s advising Lincoln sometimes explicitly to not do the thing that Lincoln does, right? So, he’s being honest according to what he thinks should be happening, speaking sometimes for Maryland or sometimes about states that are considering secession, other times not at all, but he’s being honest.

And then, he is, after giving what he considers clearly to be honest advice, acting sometimes at the behest of the president.

Heather Cox Richardson:

So, Johnson is a particularly interesting character for Lincoln to be using the way he does because Johnson was actually the lawyer who represented John F. A. Sanford in Dred Scott V. Sandford, that case that concerned whether Dred Scott, who was an enslaved man who’s enslaved or had taken to the free territories, whether he could sue for his freedom.

Johnson was a passionate supporter of Illinois’ Democratic senator Stephen Douglas when he ran in 1860. Douglas was Lincoln’s most formidable opponent, bringing forward the idea that the way to solve the issue of enslavement in the territories is to permit people at the local level to vote for it or against it, an unworkable plan, but one that got a lot of popularity because it seemed to kick the can down the road.

Joanne Freeman:

A formidable opponent and a very public opponent because of course the Lincoln-Douglas debates, even at the time, got a lot of attention. Their opposition is in the public eye, and Johnson supports Douglas.

Heather Cox Richardson:

And after Lincoln’s election, he is the head of a Maryland delegation that went to the so-called peace conference, which was an attempt to stop southern secession in February of 1861 just before Lincoln’s inauguration. And they met in Washington’s Willard hotel, which Joanne knows very well.

Joanne Freeman:

I love the Willard Hotel. I do.

Heather Cox Richardson:

I had to work that in there.

Joanne Freeman:

Thank you. I do. I love the Willard Hotel.

Heather Cox Richardson:

She had a Twitter thread last week. She was sitting at the Willard. And I didn’t tell you this, a lot of people send it to me and they’re like, “I hope you’re not recording with Joanne tonight.”

Joanne Freeman:

Yeah, Joanne was sitting at the Round Robin bar at the Willard Hotel. That’s a wonderful bar if I do say so myself. And actually, the hotel as a whole was very prominent in politics in the 19th century.

And what’s interesting about this meeting to try and stop southern secession, meeting at the Willard Hotel, is this is a peace conference that’s not meeting in the capitol, but that it’s very explicitly meeting in a very different, very separate space, in the hope that maybe by moving it into a different climate, into a different area with different significance and no audience, maybe there’s a way in which some kind of solution could be found.

Heather Cox Richardson:

So, Johnson becomes kind of a sounding board for Lincoln and somebody who’s cautioning him, sort of whispering in his ear what is going to be achievable in Maryland especially, which is a state that Lincoln knew he had to have because if he lost Maryland, it would cut Washington, D.C., off from the rest of the United States, but also one that was not at all clearly on the side of the Union at first.

So, Johnson, on April 22nd, 1861, very shortly after the firing on Fort Sumter, wrote to ask Lincoln whether or not troops would invade Virginia and Maryland or whether the United States was simply going to be defensive. So, Johnson writes to Lincoln, “The existing excitement and alarm of the public mind of my own state and of Virginia are owing to an apprehension that it is your purpose to use the military force you are assembling in this district for the invasion of, or other hostile attack upon, these states.”

And Lincoln responded by saying, “I’m not going to strike first, but I am going to respond to any acts of aggression,” which is a really important stance that he’s going to take, even though the Southerners are like, “Oh, he’s attacking, he’s attacking, he’s attacking.” He is again and again saying, “I am not attacking the southern states. I will respond to aggression.” And one of the ways he can get that message out is through Johnson.

Joanne Freeman:

He says it I think really skillfully. He says to Johnson, “Suppose Virginia sends her troops, or admits others through her borders, to assail this capital, am I not to repel them, even to the crossing of the Potomac if I can?” So, he sets up a scenario, “I’m just going to be defensive. I’m not going to be attacking at all. But if Virginia sends troops to assail the capitol, surely I need to push back. Surely, I need to repel them.”

Heather Cox Richardson:

He and Johnson are going to continue to correspond about hot button issues for the border states, which Lincoln understood was going to be crucial to the success of the United States armies. So, one of the places where Johnson ends up coming down on Lincoln’s side in a really important way is when Lincoln began to suspend the writ of habeas corpus along the railroad lines between Philadelphia and Washington, D.C., largely because there was the potential for a rebellion when they went through Maryland.

And the idea that the government can’t arbitrarily arrest people was really horrific at the time. I mean, that’s going to change a lot during the war. But Chief Justice Taney of the Supreme Court, who had actually decided the Dred Scott decision, objected to the idea that Lincoln could suspend the writ of habeas corpus, but Johnson actually turned against Taney on that. He backed Lincoln and he became essentially a legal mouthpiece for the president.

He issued a long memo that defended the suspension of habeas corpus and called it, not surprisingly, power of the president to suspend the habeas corpus writ. He said that, “While Congress has the constitutional authority to suspend habeas corpus and the president generally could not do so on his own, the exceptional danger of a rebellion in Virginia and Maryland required Lincoln to act with efficiency and force.”

He said, and again, remember, this is not a Lincoln supporter politically, “A quasi war exists between the government and the rebels. Not only the safety, but the very existence of the government depends upon the result. Rebellion must be suppressed, or the integrity of the government suspended, impaired, or destroyed.” Now, Lincoln then picks up that defense when he gives his first message to Congress on July 4th of 1861.

He called them back into emergency session of Congress, and in that, he asks Congress to do something that is really unusual. He does ask for special powers, but he also asks Congress to bless essentially what he had done between the outbreak of the rebellion in April and the time Congress Hall manages to gather on July 4th. He did a lot of stuff that it was not entirely clear was legal, but he picked up Johnson’s argument for why it was okay for him to have done that.

“Now it is insisted that Congress, and not the executive, is vested with this power,” he said in that message. “But the Constitution itself is silent as to which or who is to exercise the power. And as the provision was plainly made for a dangerous emergency, it cannot be believed that the framers of the instrument intended, that in every case, the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.”

Joanne Freeman:

So, there we have Johnson coming forward with the suggestions to how things should work, which Lincoln then adopts and puts in his message to Congress. But then, on the other hand, although Johnson is helping Lincoln find a rationale for suspending the writ of habeas corpus, he doesn’t completely go to Lincoln’s side on the issue. He actually also does things that are helping people who feel that they’re right for the writ of habeas corpus has been violated.

And this is an example of what I said at the outset about the give and take and push and pull and how these are, people like Reverdy Johnson are advisors, legal advisors, sometimes a mouthpiece, but also acting on their own. So, in this case, as 1861 continues, and it doesn’t seem as though Maryland is going to secede, Johnson takes on a number of clients who he considered to be loyal Unionists, but they were imprisoned without trial by the administration.

So, in one case, concerning the military arrest of an influential Baltimore industrialist named Ross Winans, he appealed, Johnson, to Secretary of State William Seward and basically forced Winans release. And Johnson continued to work to secure the release of Maryland detainees who Johnson believed were faithful to the Union, really again and again and again standing up and helping people who had been arrested and had not been able to protest whether they were rightfully or wrongfully detained.

Heather Cox Richardson:

And then, in 1862, Johnson goes back into politics. He gets elected to the Maryland House of Delegates, and then that body elected him to return to the US Senate in 1863. So, now, we’re really blurring the lines between legal advice and politics. And in the midst of that change, Lincoln sends Johnson to New Orleans to investigate complaints against General Benjamin Butler, who was hated down there for his unorthodox, you could say, and heavy-handed tactics.

And thanks to Secretary of State Seward, Johnson was given free rein to try and resolve the disputes between Butler and representatives of Europeans who insisted that Butler had held onto almost a million dollars of silver coins that belonged to Dutch nationals who were living in the city. Butler refused to turn over the money because he said that it would simply go toward buying Confederate weapons in Europe, but the United States obviously wanted to resolve this issue without infuriating more Europeans at that point.

So, they sent down Reverdy Johnson. Butler was furious of course, but Johnson ultimately ruled against Butler in that issue and settled the other disputes that Butler had with European powers, effectively working for Lincoln and Seward.

Joanne Freeman:

Now, over time, the relationship between Johnson and Lincoln cooled. Johnson was of mixed mind when it came to slavery and basically more than anything else, thought that there should not be intervention on the issue. So, not surprisingly, he was uncomfortable with the Emancipation Proclamation. And these tensions intensify after he takes his seat as a US Senator in late 1863, where he continuously challenged Lincoln’s willingness to embrace what he saw as increasingly abolitionist tendencies.

Heather Cox Richardson:

And that is actually really interesting because once he becomes a senator, he’s got a lot less wiggle room to represent Lincoln.

Joanne Freeman:

True. Because now he has people who he actually does represent. So, right, he now has constituents explicitly that he has to serve.

Heather Cox Richardson:

So, that use of a private lawyer both for advice and for political ends is a really 19th century construct that’s going to change, as we said, in the middle of the 20th century when we get the concept that a president needs, well, legal advice and protection.

And a great example of that comes from, as Joanne said, the Nixon administration, when Nixon is going to work closely with an attorney named Herb Kalmbach, who begins as Nixon’s real estate lawyer, and quickly is going to blur the lines between the law, the president, and the presidency.

Joanne Freeman:

Now, Kalmbach was introduced to Nixon in the mid-1950s, probably by eventual Nixon chief of staff H.R. Haldeman. And he supported Nixon’s campaign for president in 1960 and in 1968. And particularly in the 1968 election, he had a very large role in fundraising for Nixon. Shortly after Nixon was elected in 1968, Nixon made Kalmbach his personal attorney.

And of course, not surprisingly, Kalmbach’s legal firm benefited enormously. It quickly came to represent the massive company of United Airlines. So, as soon as he was seen to be serving this role, clients come to him because of course, now clearly he’s on the inside, he has important links and connections. And Kalmbach, also not surprisingly, blurs the lines between personal and political lawyering.

So, for example, he oversaw the 1969 purchase and renovation of the Western White House San Clemente, which was paid for in part with federal funds. Kalmbach gave invoices for beach cabanas, gazebos, redwood fencing, often suggesting that the renovations were being co-signed by the Secret Service and somehow or other were largely in the interest of presidential security.

He also managed to somehow or other finagle for Nixon a $576,000 income tax deduction for the donation of his vice presidential papers to the National Archives.

Heather Cox Richardson:

And this is what made me wonder about the use of lawyers in positions like fundraising. Why would you need a lawyer there to be a fundraiser? And obviously, partly, it’s because of the reality that he had access to the president. But this is where the attorney-client privilege becomes extraordinarily valuable because if something untoward is going on, you can shield those conversations and those documents under the attorney-client privilege much longer than you could under the historian-client privilege.

Joanne Freeman:

And thus, there you have someone with almost unequaled access to the president and is involved in all of these financial dealings and has his activities masked. You can see how, in this case, this kind of person could have an immense amount of power.

Heather Cox Richardson:

Kalmbach raised staggering sums of money for Nixon’s 1968 and 1972 presidential campaigns. And he did so in part because he was a member at a very exclusive club called the Lincoln Club of Orange County, which gave him access to the Newport Beach conservative scene. And much of his fundraising success was associated with the Lincoln Club. That group was made up of about 125 Republican millionaires in the 1960s and ’70s, most of whom were yacht owners.

John Wayne was a member there. He and Kalmbach socialized together extensively. And ultimately, the Lincoln Club membership took credit for electing Nixon in 1968. The president who was a medical instruments industrialist, who was named Arnold O. Beckman in 1969 at a member dinner celebrating Nixon’s victory, said, “We elected Richard Nixon president of the United States. Without California, Dick Nixon could not have won the election.”

“And it was Orange County, with some help from San Diego County, that provided the plurality for him to win California.” People didn’t talk a lot about exactly what Kalmbach was doing in the club-

Joanne Freeman:

But they knew.

Heather Cox Richardson:

… but he was very close friends with Beckman. And one anonymous member told the New York Times that he was a direct link to Nixon. “If you have business with the government and you want a lawyer, you go to Herb. But you can’t talk with him for less than $10,000.”

Joanne Freeman:

You can see how his fame and fate is rising with this kind of amorphous relationship with the presidency.

Heather Cox Richardson:

I know this is going to be a real spoiler. This is going to go nowhere good.

Joanne Freeman:

I know that people were like, “Wait, this is going to be the upstanding, encouraging, wonderful part of the Nixon story. No, no.”

Heather Cox Richardson:

He’s going to be like Chet Arthur. He’s going to go straight. I just had to work him in.

Joanne Freeman:

And I just love that you call him Chet because you’re buddies. Now, Kalmbach was willing to break the rules to secure funds for Nixon. So, for example, during the 1970 midterms, he oversaw a fund that grew to $3.9 million, raised through under-the-table arrangements. Kalmbach’s operation had no committee, no treasurer, and it distributed its holdings to Nixon friendly congressional candidates with no kind of public disclosures.

Then, in September of 1970, Kalmbach accepted a $100,000 donation for his midterm efforts for Nixon from J. Fife Symington, Jr., what a millionaire/billionaire name that is, a former high level Pan-American Airlines executive who then was serving as a US ambassador to Trinidad and Tobago. Now, he didn’t like that post, Symington.

And he gave that money, that $100,000, on the condition that he would be made an ambassador to a European nation instead. And Kalmbach seemingly followed through on trying to get Symington a post in Spain or Portugal, but ultimately didn’t succeed. So, Symington says essentially here, “I’ll give you $100,000 for your midterm efforts, but only if you’ll get me out of Trinidad and Tobago and get me into Europe.”

Heather Cox Richardson:

But I’m feeling that Spanish food.

Joanne Freeman:

Exactly.

Heather Cox Richardson:

But of course, it is the Watergate break-in that brings Kalmbach to people’s attention. He had access to one of several off-the-books funds for Nixon’s 1972 reelection campaign. And he paid Donald Segretti, and that’s a name that older people listening will remember. Segretti was the young leader of Nixon’s dirty tricks campaign.

The dirty tricks campaign was that that did things like ordering a whole bunch of food for a Democratic campaign event and then of course not paying for it. And the Democrats would’ve said, “We didn’t order this,” and then people would be angry that they got stuck with the bill, or writing fake letters to local newspapers making allegations that, for example, the young communists were supporting Nixon’s opponents or that making attacks on Nixon, or writing and saying how wonderful they thought Nixon was.

Kalmbach paid Segretti $35,000 for those operations. Kalmbach ultimately went on to funnel more than $200,000 to seven important people, and those would be the Watergate burglars. He sent them the money immediately after the break-in of June 17th, 1972, and it was pretty clear he was buying their silence.

Joanne Freeman:

Bob Woodward and Carl Bernstein revealed Kalmbach’s usage of the fund, kept in a safe in Nixon campaign finance director Maurice Stans’ office in an October 1972 article entitled Nixon Lawyer Linked to Spy Fund. Boy, that’s a headline. When another important Nixon lawyer, recently fired White House Counsel John Dean, agreed to cooperate with Senate investigators and federal prosecutors looking into Watergate in April of 1973, Kalmbach had a telling conversation with Nixon domestic policy advisor John Ehrlichman.

When Ehrlichman revealed that Dean had agreed to cooperate, Kalmbach, not surprisingly, was shocked and worried about what he called the whole enchilada coming out. Ehrlichman said, “Dean has totally cooperated with the US attorney in the hopes of getting immunity.” Now, what he says or how he says, nobody seems to be able to define, but he. And then, Kalmbach says, “The whole enchilada?” And Ehrlichman says, “He’s throwing off on Bob and me heavily.”

Now, the whole enchilada, one of our wonderful producers left a note saying that Kalmbach’s use of the phrase “the whole enchilada,” which came about when the tape was released to Senate investigators, seems to have dramatically increased the popularity of the phrase “so what did I do this morning?” I was curious about that. And I did what would be known as an engram research search on Google, and sure enough, it’s like 1974.

We are always in our happy place when we’re doing things like this. How could I not if it was suggested? It was suggested, like this really got the phrase going. I was like, “Wow, let me look it up.” So, 1974 kind of gets off the ground. And then, 2006, it spikes like crazy, and I thought, “Why? Why?” There’s a movie titled The Whole Enchilada 2006.

Heather Cox Richardson:

Oh, I was going to say I’m over here flipping through going, “Hmm.”

Joanne Freeman:

That’s what I was doing. “What happened in 2006?” Yeah.

Heather Cox Richardson:

But of course, he was right to be concerned because the whole enchilada did indeed come out. Illegal payoffs, the funds, the attempts to interfere with investigations, the use of intelligence agencies and other federal institutions against enemies to quash the scandal. And prosecutors began to call Kalmbach the bagman in the scandal. He finally agreed to a plea bargaining agreement shortly after Dean began to cooperate.

Kalmbach was called to testify before the Senate Watergate Committee on July 17th, 1973. And much of the committee’s questioning concerned his claims that he didn’t realize he was delivering payoffs to the Watergate burglars. Instead, he said he was providing humanitarian support to keep them economically afloat.

Joanne Freeman:

Now, wait a minute, did that really fly? Just the idea? “No, no, I wasn’t paying off the Watergate burglars. I was helping keep them afloat because they were having financial problems.” That just seems dubious and sad to me, but what do I know?

Heather Cox Richardson:

Here’s how he described it. “If the client had come to me in this situation, which is wholly separate from any situation that I could believe anyone would be faced with, I would’ve asked him to exercise caution and make inquiries. But in my situation, Senator, I was dealing with the counsel to the President of the United States. It was a matter of absolute trust in the man’s integrity and honesty.”

And what Kalmbach was saying was that it was John Dean himself who had told him to make the payments and how his belief in Dean and his faith in Nixon, he said he didn’t question the arrangement.

Joanne Freeman:

No, then he must have been doing something above board.

Heather Cox Richardson:

The Watergate payoffs did not actually ultimately nail Kalmbach, but what did get him was the 1970 fundraising and the dangling of the ambassadorship in front of that large payment that got him into trouble. In February of 1974, he pled guilty in D.C. Federal District Court to two campaign finance violations connected to Symington and the larger fund that he’d set up for the midterms.

On June 17th, 1974, exactly two years after the Watergate break-in, Kalmbach was sentenced to six months in prison.

Joanne Freeman:

After Kalmbach sentencing, the New York Times reported via an anonymous friend that Kalmbach had expressed “deep hurt” stemming from Nixon’s silence as Kalmbach’s legal troubles grew. The friend reported that Kalmbach had been waiting in vain for some word of sympathy or encouragement from the president, or at least an expression of gratitude for his 12 years of unquestioning loyalty. So, there he is. He’s doing all of this.

I mean, that’s quite an array of things we just described that Kalmbach was doing. He ends up being sent in prison because of that ambassadorship scuffle, that attempt to move Symington to a different ambassadorship and that he would give $100,000 in return. Nixon says nothing, offers no support. Essentially, as you put it a little while back, Heather, throws him under the bus, which is a phrase that I really want to understand where it came from.

I’ll do another engram search. Regardless, what we’ve clearly seen today in both of the cases that we talked about, these presidential lawyers, they’re intersecting with White House Counsel. They’re acting for the president. They’re acting with the president. They’re acting apart from the president. They want support from the president. These are tangled relationships, and yet we’re talking about, as you said earlier, Heather, the law, legislation, the Constitution.

I mean, some things that while they’re a little bit amorphous, they also have some serious guardrails involved.

Heather Cox Richardson:

I actually think that sad plea of Kalmbach for attention from Nixon and some recognition of his loyalty is not insignificant in that there’s a real difference between a president who is trying to get legal advice. And in the case of Lincoln, for example, push a theory and get buy-in to a theory using legal political channels. There’s nothing untoward he did with Reverdy Johnson. He is simply trying to move the political needle and the legal needle and to see how that goes.

Joanne Freeman:

So, he is doing what one should and can readily do at that period as a president with a legal advisor.

Heather Cox Richardson:

I don’t know, having not sat in the president’s chair, but I would be shocked if a president doesn’t do something like that if they’re trying to move a needle legally in new directions. But there’s a real difference between that and what Nixon and later Trump have done, which is essentially to say, “I’m going to surround myself with people who are going to be able to find loopholes, who are going to be able to cover our conversations, who are going to be able to do things in secret and who are going to act for me, cover for me as I do things that are illegal.”

And that’s a really different concept of what the law and the president is supposed to be about.

Joanne Freeman:

Absolutely. “These people,” in the case of both Nixon and Trump, “will act for me to the degree that if they get caught, what matters is me. They’re tools, they’re instruments.” Now, another aspect of this that bears noting at this point is we’re talking about, from the outset of this conversation, things that are fluid, and there’s lots of intersections and blurred lines.

Part of what is involved in a presidency and whatever legal counsel we’re talking about, to some degree, you’re talking about people on the one hand, like Lincoln, making logical or ethical claims and other people making claims that are not so ethical or that are seemingly asking people to find ways to break the law.

To some degree, and I think this is true in so many different ways in our current political time, what we’re talking about is an assumption for a long time that generally speaking presidents will be doing things for above-the-board reasons that, to some degree, ethics, morality, the law will at least stymie them or hold them back a little bit. But what do you do with these blurred relationships with all of these blurred boundaries when you have someone in power who actually is not going to be restrained by things we assume restrain typical presidents?

There are so many ways in which, in our time, norms that we took for granted for so long have been violated. And in the case of this, you can certainly see how so much is taken for granted and easily violated, allegedly, because it depends really on what a president is doing, the reasons why he or she does it, and the outcome.