Before the Court’s decision, Nixon refused to comply with the Committee’s subpoenas. By a narrow vote of 21 to 17, the Judiciary Committee found, in that very refusal, a basis for impeachment. (Democrats voted in favor, 19 to 2; Republicans voted against, 2 to 15.) In its third article of impeachment, it made this charge:
Richard M. Nixon . . . has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee . . . and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President.12
That seems pretty grave. In a way, it certainly is. But by itself, disobedience of a subpoena is not necessarily an impeachable offense. Everything depends on what the subpoena is for. Consider three categories of cases:
A subpoena asks for all emails between the president and his advisers on a specific topic, and his lawyers claim executive privilege. To the extent that the president has a constitutional basis for resisting a subpoena, or even a good-faith argument that he is entitled to do that, there is no legitimate basis for impeachment.13 The reason is that, in such a situation, the president has not done anything that comes close to a high crime or misdemeanor. We are not speaking of a large-scale abuse of presidential power. Instead we are dealing with a conflict between the branches.
A subpoena is based on suspicion of wrongdoing—calling for all emails from the president relating to his allegedly unlawful income-tax evasion—and the White House refuses to comply. It has no good-faith argument that executive privilege is available, but the underlying offense is not impeachable. Here as well, there is no legitimate basis for impeachment. Presidents should cooperate with legitimate investigations, but it is not a high crime or misdemeanor to refuse to cooperate with a congressional investigation into an offense that is not independently impeachable. Congress cannot gin up an impeachable offense by investigating an offense that is not impeachable, and then encountering presidential resistance. The theory here is simple: if the underlying conduct is not impeachable, it is not impeachable for the president to resist an investigation of that conduct. (We could imagine a more elaborate cover-up that would test this proposition; I will get to that issue in due course.)
A subpoena is based on suspicion of independently impeachable wrongdoing—say, treason or bribery—and the White House refuses to comply, even though the president lacks executive privilege, or even a good-faith justification for asserting it. It is tempting to think that the answer is easy. Surely the president can be impeached for unlawfully refusing to cooperate when Congress is investigating impeachable misconduct on his part!
Almost surely so, but there are arguments on both sides. On the one hand, the failure to comply with a subpoena that stems from (mere) suspicion of independently impeachable actions is hardly as grave as those actions. Maybe the suspicion is unfounded. Maybe the actions never took place. Maybe the president thinks that he is being subjected to a witch hunt, or at least a politically motivated effort to damage him.
On the other hand, the Constitution certainly gives the House the authority to investigate whether impeachable wrongdoing has occurred. If the president declines to cooperate with a lawful investigation, and if he has no good-faith argument that he is legally entitled to do so, there is a strong argument that he has committed a misdemeanor within the meaning of the impeachment clause. And this, in fact, appears to be the claim in what formally became the third article of impeachment against Nixon, part of which is reprinted above.
My own vote would be in favor of impeachment. If the president refuses to cooperate with a lawful investigation into whether he has done something impeachable, he is abusing his power. But it’s not the easiest question, so I will leave it at a firm “probably.”
Yes
The article of impeachment that the Judiciary Committee placed first in its final draft referred to the Watergate controversy itself—to the unlawful entry into the headquarters of the Democratic National Committee “for the purpose of securing official intelligence.”14 There was no claim that Nixon had directed the unlawful inquiry. In the words of the article itself, he had been behind an elaborate conspiracy to cover it up by:
Making false or misleading statements to lawfully authorized investigative officers and employees of the United States;
Withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;
Approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;
Interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees;
Approving, condoning, and acquiescing in, the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses or individuals who participated in such unlawful entry and other illegal activities;
Endeavouring to misuse the Central Intelligence Agency, an agency of the United States;
Disseminating information received from officers of the Department of Justice of the United States to subjects of investigations conducted by lawfully authorized investigative officers and employees of the United States, for the purpose of aiding and assisting such subjects in their attempts to avoid criminal liability;
Making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct; or
Endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.15
The Judiciary Committee voted in favor of this article by a whopping margin of 27 to 11. But the margin conceals a big partisan difference. All twenty-one Democrats on the Committee supported it; only six of seventeen Republicans did so. Let’s underline that. The Democrats were unanimous. By a strong majority, the Republicans voted the other way.16
This article almost certainly established an impeachable offense. The president’s own campaign committee committed unlawful acts to promote his reelection (a patent violation of democratic norms, itself impeachable if undertaken at the president’s direction). When those unlawful acts came to light, the president did not disclose them, as he should have, but instead used official power, sometimes in violation of the law, to prevent people from knowing about them. The sheer accumulation of charges (nine of them!) makes that argument compelling.
It is true that under the framework that we are using, there is another view: It is not impeachable to use official power to cover up an action that is not itself impeachable. Suppose that the president committed some clearly nonimpeachable offense—say, tax evasion, speeding, occasional use of recreational drugs. Suppose that he used the apparatus of the federal government to reduce the likelihood that anyone would find out about it. By analogy to the failure to respond to a subpoena, it could be urged that there has been no high cr
ime or misdemeanor. But the analogy probably fails. Active, thoroughgoing use of the apparatus of the federal government—at least on the scale reflected in charges one through nine above—looks like a plenty high-enough misdemeanor.
We should acknowledge that the question would be tougher if we took some of those items in isolation. By itself, charge eight, while plenty awful, may not have the magnitude that would justify impeachment. The worst is probably charge six. Everything depends on the details, but efforts to engage the CIA to prevent disclosure of wrongdoing by the president’s campaign committee is unquestionably a misdemeanor in the constitutional sense.
Emphatically Yes
Nixon was separately charged with offenses that fall within the core of the impeachment clause. In what became the second article, the vote of the Judiciary Committee was the same as for the cover-up article, with the identical partisan breakdown. If we assume that the second article accurately stated the facts, the vote should have been unanimous; partisanship prevented many Republicans from doing their constitutional duty.
Here are the three strongest charges:
He has, acting personally and through his subordinates and agents, endeavoured to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.
He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; he did direct, authorize, or permit the use of information obtained thereby for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; and he did direct the concealment of certain records made by the Federal Bureau of Investigation of electronic surveillance.
He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of citizens, authorized and permitted to be maintained a secret investigative unit within the office of the President, financed in part with money derived from campaign contributions, which unlawfully utilized the resources of the Central Intelligence Agency, engaged in covert and unlawful activities, and attempted to prejudice the constitutional right of an accused to a fair trial.17
It’s tough to argue about those three.18 Indeed, they get at the core of the concerns expressed during the ratification debates in Massachusetts back in 1787, when the impeachment provision was directly linked with the preservation of liberty. If a president uses the apparatus of government in an unlawful way, to compromise democratic processes and to invade constitutional rights, we come to the heart of what the impeachment provision is all about.
If we ever get there again, let’s keep the republic.
Sex and Lies
In the two actual impeachments of American presidents, no impeachable offense was committed. In a sense, the founding document worked: the Senate refused to convict. Still, the nation was badly served.
Decades after it happened, the impeachment of Bill Clinton is almost incomprehensible, at least if it is explored in light of the debates in the late eighteenth century. You would have to work really hard to make a minimally plausible argument that Clinton committed an impeachable offense. But he gave his political opponents an opening, and they were willing to work really hard.
Clinton had an extraordinary ability to connect with people. He was also a successful president, with a quick mind and a capacity to listen and to compromise. His was an era of peace and prosperity. But he had something in common with Nixon: he provoked implacable political opposition. Long before serious allegations were made, his opponents hated him, and they wanted to impeach him. For years, they were in search of plausible grounds. In their opposition to him, they were relentless.
One reason was his political genius. The first two-term Democratic president since Franklin Delano Roosevelt, he was agile and flexible, and a terrific improviser. But from the start, his opponents distrusted him. They thought that he was a liar, interested in political success but unprincipled. They called him “Slick Willie,” and they accused him of every imaginable form of wrongdoing. He was definitely slick, but as it happened, he was innocent of almost all of the charges. But as he said on television during his initial presidential campaign, he had “caused pain in his marriage,” and he continued to cause his marriage pain while serving as president.
The process began with a 1994 investigation into real estate investments made by Bill and Hillary Clinton. The two invested in the Whitewater Development Corporation, which ended up failing. The investigation was eventually overseen by Kenneth Starr, a distinguished lawyer and former judge. No one ever charged the Clintons with wrongdoing in connection with Whitewater, but Starr’s authority was repeatedly expanded, to the point where he was investigating a wide range of controversies, including the firing of travel personnel at the White House and a sexual harassment lawsuit brought against Clinton by Paula Jones, an Arkansas employee who alleged that Clinton propositioned her. As part of the Jones investigation, Starr ended up exploring alleged wrongdoing in connection with Clinton’s sexual relationship with Monica Lewinsky, a White House intern whose name arose in the early stages of Jones’s lawsuit.
Eventually Starr produced a lengthy report on that relationship, including salacious details and a series of claims about violations of the law by the president. There has never been a prosecutor’s report quite like Starr’s. If it were a movie, you wouldn’t bring your children. But it was also written like a legal brief. It contained these words: “There Is Substantial and Credible Information that President Clinton Committed Acts that May Constitute Grounds for an Impeachment.”19 Starr’s focus was entirely on Clinton’s relationship with Lewinsky and his various efforts to cover it up, not only by lying to his wife, his staff, the cabinet, and the American people, but also by perjuring himself and obstructing justice.
Did Clinton commit high crimes or misdemeanors? In Starr’s report, it would be difficult to find any.20 Nonetheless, Starr himself seemed to think so, and the president’s opponents in the House of Representatives tried to build directly on the Nixon precedent. They spoke of perjury and of obstruction of justice. Focusing on perjury, the first article of impeachment included the following charge:
Contrary to [his] oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning one or more of the following:
the nature and details of his relationship with a subordinate Government employee;
prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him;
prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action; and
his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.21
If the claims are true, Clinton did commit perjury in connection with his efforts to cover up a sexual relationship. That’s unlawful. But under the constitutional framework, it’s not close to a basis for impeachment, because it’s not an egregious abuse of presidential authority. Nonetheless, the House voted to impeach, 228 to 206.22 As in the Nixon case, the vote was along partisan lines—but even more so. Only five Democrats voted for that article, and only five Republicans against it.
The second article focused on obstruction of justice, with particular reference to the Paula Jones lawsuit. It alleged a “co
urse of conduct or scheme” including various acts:
On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading.
On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony if and when called to testify personally in that proceeding.
On or about December 28, 1997, William Jefferson Clinton corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him.
Beginning on or about December 7, 1997, and continuing through and including January 14, 1998, William Jefferson Clinton intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness in that proceeding at a time when the truthful testimony of that witness would have been harmful to him.23
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