The Case for Impeaching Trump

by Elizabeth Holtzman

  In this, it prefigured the report independent counsel Kenneth Starr sent to Congress on his investigation of President Bill Clinton’s relationship with an intern, Monica Lewinsky, recommending his impeachment. Special counsel Mueller’s role in impeachment remains to be seen.

  When President Nixon ordered Cox’s firing—to stop him from getting key tape recordings of White House conversations—it engendered such a public uproar that the House of Representatives was compelled to initiate an impeachment inquiry in response, ultimately leading to Nixon’s resignation.

  The third signal factor in bringing about President Nixon’s downfall was the Senate’s decision, in February 1973, to create a select committee to investigate Watergate. Chaired by Senator Sam Ervin, a highly respected Democrat from North Carolina, the Senate Watergate Committee held extensive hearings. Ervin called himself a “country lawyer,” a self-deprecating moniker that could not conceal his sagacity and constitutional law expertise. The Republican vice chair, Senator Howard Baker of Tennessee, started off as a strong Nixon partisan. Famously, he repeatedly asked, “What did the president know and when did he know it?”—thinking that the answers from witnesses would show that Nixon knew nothing and wasn’t involved. When the answers showed otherwise, Baker bowed to reality and supported a thorough inquiry that would lead to the truth.

  The star witness at the televised Senate Watergate hearings was John Dean, the White House counsel who had been fired before his appearance. Dean testified that he had been involved in the Watergate cover-up from early on. The most dramatic moment occurred when he swore that on March 21, 1973, he told President Richard Nixon in the Oval Office of a “cancer on the presidency”—of presidential pardons offered to the Watergate burglars and hush money paid to them. According to Dean, President Nixon said that he knew where and how to get more hush money. Of course, the president vehemently denied Dean’s version of the conversation.

  When the existence of a White House taping system became known in the summer of 1973, its significance was unmistakable. The substance of the March 21 conversation between Dean and President Nixon was no longer a “he said, he said” proposition. The tapes would resolve who was telling the truth, and the stakes couldn’t have been higher: either Dean was lying or the president of the United States was involved in the cover-up of a burglary of DNC headquarters designed to interfere with the 1972 presidential election.

  When the special Watergate prosecutor subpoenaed the Oval Office tapes, President Nixon suggested providing summaries. Cox rejected that suggestion. Then, on October 20, 1973, with a federal appeals court order that required the tapes be produced staring him in the face, the president ordered Cox fired. That, President Nixon must have thought, would put an end to the tapes controversy. But Attorney General Richardson refused to fire Cox—he had given his word to the Senate that Cox would be independent—and he resigned. Deputy Attorney General William Ruckelshaus also refused to follow the order and resigned. The third in line at the Justice Department, Solicitor General Robert Bork, was sworn in as the acting attorney general and, following the president’s order, fired Cox.

  These events became known as the Saturday Night Massacre—and it proved to be a watershed moment. The country was up in arms. Something was seriously wrong if the attorney general and his deputy, both Republicans, were resigning, and if President Nixon was fighting to stop the disclosure of tapes that theoretically could have proven him innocent. The American people demanded action from Congress, and numerous resolutions of impeachment were introduced in the House.

  When the House impeachment inquiry began shortly thereafter, my work was cut out for me. I had to become fully acquainted with the business of impeachment, and while undertaking that huge assignment, I also had to attend to regular congressional business, still new to me. There was an agriculture bill (a particular conundrum for a city girl like me), a public works bill, and all the rest of the legislative agenda to digest and vote on, not to mention working to fulfill the promise I had made to my constituents to help end the Vietnam War. I had also become a plaintiff in a Brooklyn lawsuit with four bomber pilots to stop the US government’s bombing of Cambodia without congressional approval. There was a lot to master all at once.

  It took some time for the House Judiciary Committee to get organized, but it got there. John Doar, a Republican and former high-level Justice Department official, was appointed by the committee’s Democratic majority as the committee’s impeachment counsel, and the Republicans appointed their counsel, a Republican as well. This sent an important message—the Democrats on the committee were going to act in as bipartisan a manner as possible. The new committee chair, Peter Rodino of New Jersey, occupying his position thanks to my defeat of Celler, the former chair, in the primary, was mild-mannered and soft-spoken but very experienced in the ways of Washington. He understood that the country would never stand for having a partisan Democratic congressional majority remove a Republican president, particularly one elected in a landslide. It would be a naked display of power and seem blatantly undemocratic.

  My first order of business was to comprehend fully the meaning of the Constitution’s impeachment clause, something that was given no attention in law school. Impeachment, I learned, was meted out solely for presidential conduct that constituted “treason, bribery or other high crimes and misdemeanors.” Treason was defined in the Constitution, and bribery seemed reasonably clear. Neither seemed to be involved in Nixon’s misconduct. But the exact meaning of “high crimes and misdemeanors” was far trickier, and any impeachment proceedings against Nixon would have to focus on the phrase. We received a lengthy memo from the committee staff on “high crimes and misdemeanors,” cowritten by then-staff member Hillary Rodham, but I wanted to know more. That sent me back to dry tomes about English legal history—a subject of no interest to me in law school—which is where impeachment precedents are found.

  After studying the constitutional standard for impeachment, we had to deal with the facts of President Nixon’s conduct. The amount of factual material committee members had to process and absorb was so overwhelming that I often felt as if I were sinking in quicksand. The committee staff compiled big, black three-ring binders that contained statements of facts and backup information. The staff then read the statements aloud to the committee members behind closed doors, where each one of us could question or dispute the statements. We had to lock the books every night in our own office safes. The wisdom of this approach was clear: no committee members could complain they didn’t know what was going on or that they had not had an opportunity to object.

  The statements of fact laid out what seemed to me to be an unending list of presidential wrongdoing and instances of abuse. We examined the intricacies of the Nixon campaign’s plans for the Watergate break-in and the other schemes to disrupt the November election through so-called dirty tricks, such as the use of prostitutes to compromise Democratic delegates at their convention in Miami. Then we focused on the many layers of the cover-up. The cast of characters was large, ranging from former attorney general John Mitchell, who had approved the break-in and was part of the cover-up, to lower-level campaign officials, and from the president down to high and low White House officials. It even included the head of the Justice Department’s criminal division, whom President Nixon pumped for information about the Watergate investigation, only to turn the information over to his top aides to help them avoid criminal liability.

  The cover-up also involved misusing the CIA to stop the FBI’s investigation, misusing the FBI by getting the director to deep-six incriminating material, blocking a potential congressional investigation into Watergate before the election, encouraging perjury by President Nixon’s top aides, dangling offers of presidential pardons, and making the payments of hush money to keep the burglars quiet. All these items became part of the first article of impeachment (the cover-up article).

  Another matter that found its way into Article I was President Nixon’s “false or mi
sleading public statements for the purpose of deceiving the people of the United State.” For example, he publicly claimed that White House investigations cleared everyone of any involvement with the break-in. Another example occurred after his aide H. R. Haldeman testified falsely before the Senate Watergate Committee about Nixon’s March 21 conversation with John Dean. President Nixon made a public statement saying that Haldeman’s false testimony was accurate. The cover-up would also be treated as an abuse of power in the second article of impeachment.

  But there was more, much more, than the break-in and cover-up. Having approved illegal wiretaps of journalists and White House staffers, President Nixon hid the tapes in the White House. One of the staffers went to work for a Democratic presidential candidate, Senator Ed Muskie of Maine, giving Nixon a handy secret pipeline into the Muskie campaign. In addition to ordering IRS audits of political foes on his Enemies List—mostly people who opposed the Vietnam War—he established a special unit, the “Plumbers,” that broke into the office of the psychiatrist of Daniel Ellsberg. Ellsberg was a military analyst who had leaked to the New York Times and the Washington Post a highly classified Defense Department study of US military and political involvement in Vietnam from 1945 to 1967, which came to be known as the Pentagon Papers. The burglars were looking for material with which to smear Ellsberg. President Nixon had also approved the Houston Plan, a blatantly illegal program to break into the homes and open the mail of antiwar activists and other “radicals” without court orders. The plan was allegedly withdrawn, but how much of it had been put into place? These matters would eventually be included in the second article of impeachment.

  The list of other issues to examine included President Nixon’s questionable tax write-off of about $500,000 for the donation of his papers to the National Archives, for which he used a backdated document, and whether US government improvements made to his California and Florida properties violated the emoluments clause of the Constitution. (An article of impeachment on taxes and emoluments was rejected by the committee.)

  Of particular importance to me was President Nixon’s secret bombing of Cambodia. Congress had banned any bombing of that country, but Nixon, paying no attention to the law, kept two sets of books about the bombing to allow him to violate the law with impunity. The fake set showed no bombing in Cambodia and was given to Congress to keep the fact of the bombing hidden. The other set of books showed the actual bombing sites. That was not given to Congress. Because it drastically undercut Congress’s role in war-making decisions, this deception prompted me to draft an article of impeachment on these grounds. (Although introduced, the article was not accepted.)

  There are several things worth noting at this point. The impeachment effort did not start with a call for it by a special prosecutor, as happened in the failed President Clinton impeachment. There was, rather, a public outcry for congressional action. Though the Democrats then controlled the House of Representatives (and the Senate), there was no will on the part of the House leadership to take on impeachment until the Saturday Night Massacre, when our phones and mailboxes were flooded with messages from people all over the country.

  The reluctance surprised me at the time. Some of us, including me, were getting a bit impatient with the inaction, particularly in light of the revelations produced by the Senate Watergate Committee and the president’s continued efforts to expand his executive authority. But the hesitancy of the House leadership was also understandable in hindsight. Before Watergate, the only previous presidential impeachment was the failed effort to impeach President Andrew Johnson in the 1860s. Could Congress be trusted not to make the same mistake again? The House Judiciary Committee had a brand-new, untested chair and a large number of new members. Would they know how to handle this extremely explosive but delicate task? President Nixon had won in a landslide less than a year before. How would those who voted for him react to an impeachment—would the focus shift from the acts of the president to the acts of the committee? President Nixon posed a danger to the country, but impeachment posed a risk to the Democrats—or so it may have seemed at the time.

  Ultimately, in July 1974, a little more than two years after the Watergate break-in and after an exhaustive—and exhausting—analysis of the law and the facts, the Judiciary Committee scheduled televised public hearings on whether to impeach President Nixon. During the debate on the articles of impeachment, Americans heard the committee members sincerely and thoughtfully grappling with the issues. There was very little grandstanding. Barbara Jordan, a new Democratic member from Texas, electrified everyone when she spoke about how the Constitution excluded her and other African Americans as full human beings with equal rights. I spoke of how I had listened carefully to White House tapes the committee received, waiting for the president to ask what was the right thing to do or what was in the public interest. He never did. When I later became district attorney in Brooklyn, the wiretaps of mobsters that I had to review seemed awfully familiar.

  Under the Constitution, impeachments begin in the House of Representatives. If the House approves articles of impeachment by a majority vote, then there is a trial in the Senate, which must convict by a two-thirds vote. For the vote on the first article of impeachment, dealing with the cover-up in all its manifestations, six Republicans (roughly a third of the total) joined the yea votes of all the Democrats, which included three southerners from very pro-Nixon districts, for a tally of 27 to 11. An additional Republican joined the pro-impeachment vote on the second article of impeachment, dealing with President Nixon’s various abuses of power, including those pertaining to the Watergate cover-up, for a tally of 28 to 10. The third article focused on Nixon’s defiance of the impeachment process by refusing to respond fully to Judiciary Committee subpoenas for documents and for the tapes of forty-two White House conversations, thereby impeding the impeachment inquiry. It received the smallest number of votes, 21 to 17. (A copy of the President Nixon impeachment articles is contained in Appendix II.) The three articles, approved respectively on July, 28, 29, and 30, 1974, were sent to the House of Representatives for a vote on impeachment. Nixon resigned nine days later, before the full House could schedule a vote.

  How Our Democracy Dealt with Watergate: A Blueprint for Our Times?

  The impeachment proceedings against Richard Nixon have withstood the test of time. In the forty-five years since the committee started its work in October 1973, no responsible attacks have been lodged against the fairness of the process or the correctness of the result—both of which were actually obvious at the time. That is why Richard Nixon became the only president ever to resign.

  At the same time the impeachment votes were taken, in a case titled United States v. Richard Nixon, the Supreme Court ordered President Nixon to release certain tapes to special Watergate prosecutor Leon Jaworski, Archibald Cox’s successor. Among them was the so-called smoking-gun tape, a recording of President Nixon’s ordering his top aide, Haldeman, to direct the CIA to stop the FBI’s investigation into Watergate using a false national security pretext. The tape irrefutably showed that the president was orchestrating the cover-up from the start. When the tape was made public, all of the holdout Republicans on the Judiciary Committee announced their support of impeachment.

  With a now-unanimous pro-impeachment stance by all the Judiciary Committee members, and with almost universal praise for how the committee had conducted itself during the proceedings, it was clear that an overwhelming majority of House members would support impeachment and that the Senate would convict by two-thirds, if not more. There could be no legitimate opposition to President Nixon’s removal from office for egregious wrongdoing. The president saw the proverbial handwriting on the wall and left office by resigning instead of suffering the humiliation of being forced out.

  At the time, I believed that Watergate would stand as a stark warning to all future presidents, but that was not to be. The misdeeds of President Donald Trump have resurrected the word “impeachment,” giving it new currenc
y and life. Fierce emotions about the president have roiled the country. Charges and countercharges fly back and forth, including the explosive word treason.

  Almost from the moment Donald Trump was elected, people have called for his impeachment. While premature, these calls reflected a deep discomfort with his presidency as well as a more than occasional misunderstanding of the impeachment process. Since the election, I have been asked numerous times to weigh in on the subject, to explain how impeachment works, and to draw parallels between what happened during the Nixon impeachment and what is happening now. Sadly, there are many similarities. As I did in 1973 and 1974, during Watergate, I am sorting through the facts (and yes, there are facts; this is not an alternative reality) and the law to try to give some clarity to impeachment and how it works.

  For some, impeachment is something toxic to be avoided at all costs. Reining in presidential misconduct can be achieved other ways, they assert. But I see impeachment as the grand and solemn tool that our Founders gave us to address whether a president should be removed from office. When the time is right, they meant for us to use the tool. It was designed to protect our democracy and to preserve the rule of law. I believed the time was right in 1974, and I believe the time is right once again.

  Watergate showed that despite President Nixon’s reprehensible conduct, the rest of the system worked and could function as a real check on a rogue president. The courts worked. Republican judges, at the district court level and up to the Supreme Court and including every one of President Nixon’s own appointees, put aside party for country and the rule of law,