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From the Lever’s reader supported newsroom, this is Lever Time. I’m Arjun Singh.

Are we in a constitutional crisis? That’s the question on the nation’s mind after Trump’s defiance of federal court orders demanding he to unfreeze federal money, and the first question David Sirota wanted to ask John Dean.

Dean made his name in the Nixon administration as legal council to the president, and he even helped cover up Watergate. But then he flipped and became a key witness in the investigation that helped bring Nixon down. . After serving four months in prison for his role in Watergate, Dean became an outspoken critic of presidential power and particularly how presidents like Nixon, George W. Bush and now Donald Trump have abused it.

Today, on a special bonus episode of lever time, David Sirota sits down with Dean to talk about the fragile state of American democracy, posing the question, how do Trump’s actions compare to Nixon’s? (Spoiler: they’re worse.)

David: [00:00:00] okay, so first question Are we in a so called constitutional crisis and what does that term constitutional crisis mean?
John Dean: I don't think we're there yet. I think we're on a flight plane right now. It would put us there very easily. And it would, in this instance, it would happen Uh, if Trump refused to comply with a court order is the really short answer. Uh, you know, there was always a threat during Watergate, for example, of a constitutional crisis.
Sam Ervin, the chairman of the Senate Watergate committee called it a constitutional crisis, the worst since the civil war. Uh, it wasn't, uh, but it was certainly a, a good moniker to alert people, but we're not there yet in this instance either.
David: So this whole notion of defying a court order, I mean, there's been examples of sort of floating it out there that a president has simply just ignored an order. [00:01:00] Um, but maybe you have some examples. I guess what I'm getting at is, I think a lot of people, this feels like a quote unquote unique situation, but maybe we've been here before, have we?
John Dean: theoretically, a president can test the constitutionality of a, of a given order of a court, uh, further than the court resolving it. Uh, it really has never happened. Uh, Andrew Jackson, for example, famously said, uh, the Supreme Court has ruled that the Chief Justice now enforce it. Uh, and obviously, uh, the Chief Justice can't enforce it without using the executive branch of the government.
Lincoln did defy the court, but did it to save the union. but modern presidents , no., Harry Truman, for example, very badly wanted to prevent a strike during the Korean War and seize the steel mills to prevent, A union, uh, from taking over and leveraging [00:02:00] off the war.
the Supreme Court said, no, no, you're, you're way beyond your powers. You can't do it. and so cease and desist. And they did. So it is not the norm. It is, this is the way Trump is doing it is clearly to run up some case. It's a test, but if he, uh, fails to. Comply with the order. That's the real issue.
What, what do you do then if he does defy the order? there's no enforcement mechanism because this, the court does not have an army
David: Yeah, right. and I feel like. Well, I would ask you, is that fundamentally the, I don't want to call it the weakness or the flaw, but I guess the, the glitch in the system that ultimately the legislative branches and the judiciary don't have their own, uh, police force. I mean, you have the Capitol police, but they don't really have their own police force.
They don't have their own enforcement mechanisms and that the system is [00:03:00] essentially relied on. The person who is in the executive office. not essentially ignoring the other two branches. Is that like a, like an inherent weakness in the system?
John Dean: democracy. is very fragile. If there is not tacit agreement to follow. Uh, the norms that have evolved over 200 plus years, uh, the system can break down. No question. Trump has tested them with regularity. He is not playing by the norms. He's not even playing by the statutory rules, uh, which are laws.
so yes, the system can, you can break the system very easily. And, and if a president doesn't follow the rules, uh, we're, we're in an area we've never been before. And so what is, what is the remedy?
Well, then the people take to the street. What if he [00:04:00] invokes the insurrection act and, and start to threaten to shoot people in the knees? then you've got to see how brave people are. If, if, we've seen it in South Korea, which has a similar system. Uh, there are some parallels, there are some big differences.
But the people of South Korea recently took to the street. And they forced their president to comply with the law. Whether the American people will do that, I don't know at this point.
David: Going back to, to the, to Watergate and the Nixon White House, were there discussions at the time in the White House about Ignoring court orders, uh, circumventing court orders, I think the reason I ask is because I think people want a historical analog, and they want to know, like, was that ever something that's ever been on the table, at least as a discussion point and you were, you were there, [00:05:00] obviously, like, was that ever thrown around as, as a, as like an option?
John Dean: No, it really wasn't. In fact, Watergate is greatly misunderstood. Nixon actually was an institutionalist. he believed in the rule of law. He didn't always like the laws, but I know of no occasion, either when I was there or in studying it in the years since, that he was inclined to defy the law.
He was a man that, as I say, was an institutionalist. He believed in the rule of law. Uh, he also had a conscience and, and if you don't have a conscience or no real understanding of the institutional history of our country, you have Donald Trump who may or may not do what he's inclined to do with little regard to what the consequences will be.
David: Yeah, I mean, I'm struck by, I went back and I looked at some of the, the clips from back during Watergate, and this was in July of 1974, [00:06:00] front page of the New York Times, it says, St. Clair denies knowing if Nixon would defy court, the lawyer asserts, uh, that should the president refuse to turn over the tapes, this is the, the White House tapes, the reason given would be, uh, quote, public interest.
Now, Nixon never actually did that, but it was clearly being chattered about. he, he never, I'm, I'm sort of struck, I guess, by looking back at Watergate and, and look, there was the Saturday night massacre, where people got fired who were looking into Watergate. It is striking that even at the height of Watergate when I guess the idea of defying a court order was in the air.
Nixon never actually did that. I guess the, the follow up question is, look, Trump hasn't, as far as we know, defied a court order. Although, I wonder what you make of this idea that He was, there were court orders for him to stop doing certain things. For instance, the funding freeze and his administration didn't come [00:07:00] out and say, we're going to defy that court order.
But there's been reporting subsequently that in practice. They are just ignoring the court order. In other words, instead of just coming out and saying, we're not going to follow this order, they just proceed as planned, almost like quietly defying a court order. I'm wondering how we keep track of that, whether that creates the same kind of crisis if they just don't make a big thing of it and just ignore what the courts are saying.
John Dean: Well, that would be defiance of the court order, but David, as we talk, what's going on is a hearing to get to the bottom or proceedings, uh, in several courts to find out if they are indeed following the court's order. , the court up in Rhode Island, I believe, is the one that has raised that issue and put it directly on the table and wanting an explanation of what they are doing and not doing.
So the question then is, will people Be willing to come up and perjure [00:08:00] themselves, will they defy the court? and the, the very inherent nature of the proceeding and honestly testify what is happening and what is not. we've got that issue right now also with say, Kash Patel. did he indeed perjure himself?
And, and, uh, in fact, have knowledge of the purges that were going to occur at the FBI. Uh, but yet tell the Senate, uh, Senator, Booker of, of, of, uh, where's he from? He's from New Jersey. Uh, did he mislead him in the answer when he in fact knew exactly what was going on and had a hand in it? Uh, that will obviously change the dynamics of his confirmation if he's that blatant a liar.
David: Let's talk, let's talk a little bit about, the so called impoundment. , the idea that the president can decide to move forward with or block congressionally authorized and mandated spending [00:09:00] in enshrined in statute. this was the beginning of this, what we're living through now where Trump basically saying I can just issue a two page letter and just freeze all funding that Congress has mandated. came up in a big way in the Nixon administration. I believe you were, you were there when it came up. Can you talk to us a little bit about how it came up in the Nixon administration, what President Nixon wanted to do, what ended up happening, what, what the law was passed, but what the, what the whole debate was back then.
John Dean: Well, I'm just actually starting to gather material to refresh my recollection in some detail about that. Uh, what I can tell you is, Nixon, on the advice of outside counsel, some Department of Justice, uh, I don't know how formal. The, uh, the memos were, or the exchanges, uh, he believed he did have that power, and indeed wanted to, not fund programs that were [00:10:00] not of his.
His inclination, in fact, he thought were a waste of money. That issue indeed came up during his impeachment proceeding. The house, impeachment inquiry had that on the table that he was indeed. Uh, withholding funds or attempting to withhold funds, and they wanted to make that part of the impeachment.
Oddly, they took it off the table in the end. It really was not part of the proceeding. and of course after Nixon had left office in 74, uh, late 74, they did enact the, uh, impeachment law that said a president cannot, uh, withhold funds.
So they actually codified. what was their belief as to how it should operate? Conservatives have always thought that was not a good law and have raised constitutional questions about it. and Trump may think now he's got a six vote court, that will indeed back him up on [00:11:00] impoundment. And so he's going to test it, I don't think it should survive.
The conservatives reading on why. There would be impoundment is so thin and so weak. It is the equivalent of a line item veto, which the court has already refused to accept. Uh, the, the precedent is, I believe it's Jefferson is the, uh, only president who has ever impounded funds. And so it's really not, it's not a part of our. our law or lore. And, we don't know the final answer to this yet because of the composition of the current court.
David: how would you explain to somebody who knows nothing about Impoundment. Uh, this power that the president, seems to allege that he has. How would you explain to somebody who doesn't know much about it? Why that specific issue is so important. You mentioned that during the Nixon impeachment, it was it was Potentially on the table as an impeachable issue.
It was impoundment was on the table, uh, in Trump's [00:12:00] impeachment over him trying to impound funds, Congress obligated to Ukraine. So how do you explain why, how it's such an important central issue to understanding what's going on?
John Dean: Well, the, the Congress clearly gives the power. Of the purse strings, if you will, to the Congress in article one, the first article of the constitution. there's nothing in article two, creating the executive branch that, uh, even relates to that kind of power being potentially a presidential power. So the Congress has always jealously guarded that.
And not only can they determine how much money of the American people can be spent. but where it can be spent, and, uh, when it should be spent. Because the budgets are, are not forever. They are, they are time stamped. Uh, they run out. and then they look at it afresh, virtually every year. some funds are rolled, uh, from year to year and, and [00:13:00] are all a bit permanent, but most, mostly it's, it's, uh, back to ground zero every year to decide how much of the American taxpayers money will be spent by, uh, the federal government.
So that's, that's the issue. And if the president can say, I'm not going to spend the money that Congress is. He is, uh, granting, he's in essence vetoing, a part of the budget and the appropriations process. this would give him enormous power. He could say, no, no, no, I'm just not going to spend that money.
Well, the Congress has written a law saying you need to spend that money because that's what we have decided and where it should be spent.
David: I think it would be helpful for people to hear. How you compare what's going on with. Watergate.The kinds of things that Trump has been engaged in, the kinds of things his administration is currently doing, how do you think it compares to the [00:14:00] kinds of, illegal things, uh, unethical things that were happening, during the Watergate scandal?
John Dean: It's very hard to Without going in some detail, it would take us a considerable amount of time to go through a litany of Nixon's activities vis a vis Trump's activities. I'm thinking actually it should be done. so people understand, uh, that really today we're, we're playing at another level, we, we are seeing Nixonian behavior and abuses.
On stilts and steroids, it is, uh, far more serious, today, what is happening than what occurred with Nixon. Nixon had thought through his positions. some, he has been accused of, of, uh, being part of his. misbehavior when in fact it was his staff that was undertaking the activity and he didn't [00:15:00] even know about it until after the fact.
So, I think staying at this stage at a generalized characterization that Nixon's abuses of power, Are far less than the systematic, actually carefully conceived abuses that are now going on. And they're set forth in some detail in project 2025, uh, what they're going to do, why they're going to do it.
and they've cataloged and categorized and systematically want to redo the American government without any. basis in law, if you will. They just think they can do it through the executive powers. It is the so called unitary executive theory pushed to its outer limits. a theory that did not even exist in Nixon's time. It's a post Watergate concept that, conservative scholars came up with.[00:16:00]
And it started small, Uh, it's based on the fact that the president of the United States is the executive branch. and that anything that Congress has put in the executive branch thus falls under the powers of the president. Well that, that has never been true. I don't think it ever should be true.
for example, the president can't start issuing licenses to broadcasters. The president can't review, new stocks to be issued. or regulate, the securities and exchange market. I mean, it's just, we have regulatory agencies who do nothing but study and control these things, but Republicans just don't like the entire administrative state and they'd like to destroy it all or give the president the power to come in and veto what they do.
Well, that will disrupt a lot of government operation if they succeed in doing that. Uh, and it's going to get a lot more thrilling just because one [00:17:00] manufacturer of breakfast food doesn't want to be told what he can put in his breakfast food, they'll demolish, uh, an entire agency or bureau, to eliminate that possibility.
So, these are going to be very interesting times.
David: The question about how they're doing things, Trump And his party control the White House, the Congress, most of the judiciary. In theory, they could do what they want by just simply passing laws to do what they want. If they want to shut down the Department of Education, they could just pass a law doing that.
they've chosen instead to try to just unilaterally send Elon Musk and his minions into these departments and just shut them down without what appears to be any authority under the law. The question then becomes, why are they choosing to do it That way, rather than through the small d democratic institutions that they already control.
What's your theory on that?[00:18:00]
John Dean: It's not a theory, it's a reality, that in fact, while they, on paper, They have control of the House and Senate, and they do have a number of judges that he selected. in fact, they don't really control those agencies. for example, we know that it's unlikely that the Republicans in the House and Senate can pass anything to make it into law without Democratic support.
they have an uncontrolled, caucus, if you will.they have Uh, radical conservatives there who, who can never be satisfied with anything. Their real goal, it's odd they're in government because they don't like government. They want to destroy government. and for them to get a simple majority in the House of Representatives is very difficult.
we're, we're going to see this with the debt ceiling, which is coming up very shortly, and Trump needs that debt ceiling raised. Or he can't get his tax breaks [00:19:00] for, his key constituents, his, his billionaires. Made permanent, which is what he, uh, really is, is why he gets a lot of big money support.
So I don't think that they're following the norm because they don't have, in fact, the true control of government that they. on paper claim they have. They certainly do not have a mandate for anything. one vote in the House is not a mandate. Uh, three votes in the Senate is not a mandate. Uh, he has to intimidate and, and coerce virtually every vote he wants to get people in his cabinet.
Which is just about the lowest level of, compliance you can have. And I, you know, obviously the Republicans have caved in the Senate, and in the House at this point, but they know they can't do anything without Democrats because they can't get all of them on the same day on the same issue.
David: So, the final question I have for you, as somebody who lived through Watergate, was [00:20:00] on the inside of the White House, I think a lot of people are wondering, In a sense, how concerned should everyone be? Like, is this a five alarm fire already? Is there a path where this doesn't end, or at least calms down in a way that is Not so, uh, catastrophic and not, not the, uh, the, the quote unquote end of democracy.
I mean, when you look at this through the scope of where we are historically, where are we in your mind?
John Dean: first of all, let me recharacterize my, position in Watergate. While I lived through it, yes. But you recall, or maybe you're too young to recall, that I was not on the inside. I was the one trying to blow up Watergate and to
David: I meant on the inside of the White House.
John Dean: uh, well, yes, for a while, but I'm also on the outside. One of the reasons that the, the norms came down.
to separate the Department of Justice from [00:21:00] the White House were the tapes of Nixon talking to the head of the criminal division about what to do with me, because I had broken rank. Uh, and he's right in the middle of trying to, uh, protect two other aides, his chief of staff and his top domestic advisor, while get me.
Uh, so, the way these things Pan out after 40 years of, of, uh, doing it the right way are of great interest to me. so let me give you a sort of an overview of how I'm reacting. I, I fee, I have three granddaughters, so I want to see them live in the democracy I've been able to live in, my life. And I'm very worried.
I'm very worried more than I have ever been. And it's a combination of. Trump's personal lack of knowledge of government and history. And now he's surrounded himself with the people he did not have during his first four years, [00:22:00] people who know he's an empty vessel, know that he, how to manipulate and deal with him.
And they have stepped up because they've had long agendas. from everything from their religious beliefs, uh, this Christian nationalism, to their ideological beliefs as to what government should and shouldn't be doing. And they see this guy as the vehicle to accomplish their long time dreams. If they succeed, we don't have the democracy we've been living under.
I think what is the check, hopefully, is that at some point. Trump, who does not want to go down as a Herbert Hoover president, and sees the market start to crash again, as it did a few, two days ago, actually. he is terrified of the market crashing during his presidency because that is the, Probably the, the high mark of the beginning of the end of the Hoover [00:23:00] presidency and has left a mark on, he was a very noble civil servant and well meaning president who just botched one thing after another.
David: Trump does not want to be that. He doesn't want to top Herb Hoover. so that's the potential check, uh, is if the market starts to crash or people, uh, take to the streets and it gets out of hand. So, am I worried? You bet I am. John Dean, thank you so much for taking time with us today. Really appreciate it.
John Dean: My pleasure, David.