Tuesday, October 10, 2017
"I sat through weeks of impeachment proceedings against Richard Nixon. Forty-plus years later, I see the makings of another case.
With Republican members of congress becoming increasingly anxious about the unpredictable if not reckless president, the question of how Donald Trump could be removed from office has become more prevalent on Capitol Hill. The thinking used to be that the 2018 midterm elections might go a long way toward deciding whether the next congress would take up this question. But with all the president’s recent saber rattling, combined with his impulsiveness and alarming tendency to ignore his most qualified advisors, the matter is now considered more urgent.
As is well known, the Constitution sets forth two ways to remove a president. Article 25, which establishes the mechanism for getting him out of office if he’s seen as “unable to discharge the powers and duties of his office,” is clumsy and perhaps unenforceable. Then, of course, there’s impeachment. Observers have insisted that Republican leadership would never allow an impeachment proceeding against Trump, or that too many Republicans fear “the base” to move against him. Such things can change over time. Richard Nixon had a base until he didn’t. Yes, Trump’s might be different. I’m not, however, addressing the question of the likelihood of such a proceeding but, rather, if congress were to seriously take up the matter of impeachment, what might be valid charges against him. Depending on what special counsel Robert Mueller’s investigation turns up, there could be several such charges.
To impeach a president (in the House, by a majority) and then convict him (in the Senate, by a two-thirds vote) is appropriately difficult. It shouldn’t be easy. But it’s a critically important instrument for holding a president accountable for his actions. Impeachable offenses aren’t the same thing as crimes listed in the U.S. Code. In fact, that’s the point: a president can be held accountable for actions that aren’t necessarily crimes. A crime might be an impeachable offense - but not all impeachable offenses are crimes.
An impeachable offense is a crime against the Constitution, or the body politic – as Alexander Hamilton said, “injuries done immediately to the society itself.” Impeachment isn’t a process by which an established set of principles is enforced. There’s no tablet to be taken down from on high and followed; there’s no code of offenses for which a president can be charged. There are precedents, but they’re not binding, which is a good thing. Two of the previous impeachments, of Presidents Andrew Johnson and Bill Clinton, were essentially partisan exercises which fell short of the needed Senate votes. On the other hand, Richard Nixon would have been impeached and convicted had he not given up the presidency to avoid that fate (and to hold onto his pension). The proceeding against Nixon in effect succeeded because it was serious and bipartisan. Whether such a formation is possible in today’s politics is questionable, but as the Republicans get increasingly worried about Trump, a bipartisan move against him becomes less far-fetched than has been widely assumed.
Having sat through weeks of deliberation by the House Judiciary Committee when it considered the impeachment of Nixon, and having kept up with the subject ever since, including talking to constitutional scholars, I believe that there are valid charges to be brought.
A critical principle adopted in Nixon’s in-effect impeachment that could also be applied to Trump was, to my mind, the most significant adaptation of the impeachment power by the House Judiciary Committee. Article II listed a number of “abuses of power” committed by Nixon himself or through his subordinates – including wiretapping, use of the IRS against Nixon’s “enemies;” the break-ins of the Democratic National Committee headquarters at the Watergate and, far more menacing, into the office of the psychiatrist of Daniel Ellsberg, who had leaked the Pentagon Papers. The drafters were interested in looking for a “pattern or practice” of a certain kind of behavior.
Thus the drafters of Article II significantly broadened the scope of impeachable offenses by holding the president accountable for the acts of his subordinates. Under this principle, winking and nodding but not saying anything incriminating (or caught on tape), wouldn’t exempt a president from responsibility for their acts. Thus the answer to the persistent question, Did Nixon know ahead of time about the Watergate break-in? is, ‘It doesn’t matter.’ He gave enough signals to his subordinates that he wanted to “get the goods” on Lawrence O’Brien, the then chairman of the DNC.
The Case For Impeaching Donald Trump is Real and Serious. Here’s Why.