( Part I is here.)
Professor Turley’s testimony continues…
B. The Nixon Inquiry
The Nixon “impeachment” is often referenced as the “gold standard” for impeachments even though it was not an actual impeachment. President Richard Nixon resigned before the House voted on the final articles of impeachment. Nevertheless, the Nixon inquiry was everything that the Johnson impeachment was not. It was based on an array of clearly defined criminal acts with a broad evidentiary foundation. That record was supported by a number of key judicial decisions on executive privilege claims. It is a worthy model for any presidential impeachment. However, the claim by Chairman Schiff that the Ukrainian controversy is “beyond anything Nixon did” is wildly at odds with the historical record. The allegations in Nixon began with a felony crime of burglary and swept to encompass an array of other crimes involving political slush funds, payments of hush money, maintenance of an enemies list, directing tax audits of critics, witness intimidation, multiple instances of perjury, and even an alleged kidnapping. Ultimately, there were nearly 70 officials charged and four dozen of them found guilty. Nixon was also named as an unindicted conspirator by a grand jury. The convicted officials include former Attorney General John N. Mitchell (perjury); former Attorney General Richard Kleindienst (contempt of court); former Deputy Director of the Committee to Re-elect The President Jeb Stuart Magruder (conspiracy to the burglary); former Chief of Staff H.R. Haldeman (conspiracy to the burglary, obstruction of justice, and perjury); former counsel and Assistant to the President for Domestic Affairs to Nixon John Ehlichman (conspiracy to the burglary, obstruction of justice, and perjury); former White House Counsel John W. Dean II (obstruction of justice); and former special counsel to the President Charles Colson (obstruction of justice). Many of the Watergate defendants went to jail, with some of the defendants sentenced to as long as 35 years. The claim that the Ukrainian controversy eclipses Watergate is unhinged from history.
While the Ukrainian controversy could still establish impeachable conduct, it undermines that effort to distort the historical record to elevate the current record. Indeed, the comparison to the Nixon inquiry only highlights the glaring differences in the underlying investigations, scope of impeachable conduct, and evidentiary records with the current inquiry. It is a difference between the comprehensive and the cursory; the proven and the presumed. In other words, it is not a comparison the House should invite if it is serious about moving forward in a few weeks on an impeachment based primarily on the Ukrainian controversy. The Nixon inquiry was based on the broadest and most developed evidentiary in any impeachment. There were roughly 14 months of hearings – not 10 weeks. There were scandalous tape recordings of Nixon and a host of criminal pleas and prosecutions. That record included investigations in both the House and the Senate as well as investigations by two special prosecutors, Archibald Cox and Leon Jaworski, including grand jury material. While the inquiry proceeded along sharply partisan lines, the vote on the proposed articles of impeachment ultimately included the support of some Republican members who, again, showed that principle could transcend politics in such historic moments.
Three articles were approved in the Nixon inquiry alleging obstruction of justice, abuse of power, and defiance of committee subpoenas. Two articles of impeachment based on usurping Congress, lying about the bombing of Cambodia, and tax fraud, were rejected on a bipartisan basis. While the Nixon impeachment had the most developed record and comprehensive investigation, I am not a fan of the structure used for the articles. The Committee evaded the need for specificity in alleging crimes like obstruction of justice while listing a variety of specific felonies after a catchall line declaring that “the means used to implement this course of conduct or plan included one or more of the following.” Given its gravity, impeachment should offer concrete and specific allegations in the actual articles. This is the case in most judicial impeachments.
The impeachment began with a felony when “agents of the Committee for the Re- election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence.” The first article of impeachment reflected the depth of the record and scope of the alleged crimes in citing Nixon’s personal involvement in the obstruction of federal and congressional investigations. The article included a host of specific criminal acts including lying to federal investigators, suborning perjury, and witness tampering. The second article of impeachment also alleged an array of criminal acts that were placed under the auspices of abuse of power. The article addressed Nixon’s rampant misuse of the IRS, CIA, and FBI to carry out his effort to conceal the evidence and crimes following the break-in. They included Nixon’s use of federal agencies to carry out “covert and unlawful activities” and how he used his office to block the investigation of federal agencies. The third article concerned defiance of Congress stemming from his refusal to turn over material to Congress.
These articles were never subjected to a vote of the full House. In my view, they were flawed in their language and structure. As noted earlier, there was a lack of specificity on the alleged acts due to the use of catch-all lists of alleged offenses.
However, my greatest concern rests with Article 3. That article stated:
“In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”
This Article has been cited as precedent for impeaching a president whenever witnesses or documents are refused in an impeachment investigation, even under claims of executive immunities or privileges. The position of Chairman Peter Rodino was that Congress had the sole authority to decide what material had to be produced in such an investigation. That position would seem to do precisely what the article accused Nixon of doing: “assuming to [itself] functions and judgments” necessary for the Executive Branch. There is a third branch that is designated to resolve conflicts between the two political branches. In recognition of this responsibility, the Judiciary ruled on the Nixon disputes. In so doing, the Supreme Court found executive privilege claims are legitimate grounds to raise in disputes with Congress but ruled such claims can be set aside in the balancing of interests with Congress. What a president cannot do is ignore a final judicial order on such witnesses or evidence.
Putting aside my qualms with the drafting of the articles, the Nixon impeachment remains well-supported and well-based. He would have been likely impeached and removed, though I am not confident all of the articles would have been approved. I have particular reservations over the third article and its implications for presidents seeking judicial review. However, the Nixon inquiry had a foundation that included an array of criminal acts and a record that ultimately reached hundreds of thousands of pages. In the end, Nixon was clearly guilty of directing a comprehensive conspiracy that involved slush funds, enemy lists, witness intimidation, obstruction of justice, and a host of other crimes. The breathtaking scope of the underlying criminality still shocks the conscience. The current controversy does not, as claimed, exceed the misconduct of Nixon, but that is not the test. Hopefully, we will not face another president responsible for this range of illegal conduct. Yet, that does not mean that other presidents are not guilty of impeachable conduct even if it does not rise to a Nixonian level. In other words, there is no need to out-Nixon Nixon. Impeachable will do. The question is whether the current allegation qualifies as impeachable, not uber-impeachable.
C. The Clinton Impeachment.
The third and final impeachment is of course the Clinton impeachment. That hearing involved 19 academics and, despite the rancor of the times, a remarkably substantive and civil intellectual exchange on the underlying issues. These are issues upon which reasonable people can disagree and the hearing remains a widely cited source on the historical and legal foundations for the impeachment standard. Like Johnson’s impeachment, the Clinton impeachment rested on a narrow alleged crime: perjury. The underlying question for that hearing is well suited for today’s analysis. We focused on whether a president could be impeached for lying under oath in a federal investigation run by an independent counsel. There was not a debate over whether Clinton lied under oath. Indeed, a federal court later confirmed that Clinton had committed perjury even though he was never charged. Rather, the issue was whether some felonies do not “rise to the level of impeachment” and, in that case, the alleged perjury and lying to federal investigators concerning an affair with White House intern, Monica Lewinsky.
My position in the Clinton impeachment hearing was simple and remains unchanged. Perjury is an impeachable offense. Period. It does not matter what the subject happened to be. The President heads the Executive Branch and is duty bound to enforce federal law including the perjury laws. Thousands of citizens have been sentenced to jail for the same act committed by President Clinton. He could refuse to answer the question and face the consequences, or he could tell the truth. What he could not do is lie and assume he had license to commit a crime that his own Administration was prosecuting others for. Emerging from that hearing was an “executive function” theory limiting “high crimes and misdemeanors” to misconduct related to the office of the President or misuse of official power. While supporters of the executive function theory recognized that this theory was not absolute and that some private conduct can be impeachable, it was argued that Clinton’s conduct was personal and outside the realm of “other high crimes and misdemeanors.” This theory has been criticized in other articles. This threshold argument, however, would appear again in the Senate trial. Notably, the defenders of the President argued that the standard of “high crimes and misdemeanors” should be treated differently for judicial, as opposed to presidential, officers. This argument was compelled by the fact that the Senate had previously removed Judge Claiborne for perjury before a grand jury and removed Judge Hastings, who had actually been acquitted on perjury charges by a court. I have previously written against this executive function theory of impeachable offenses.
The House Judiciary Committee delivered four articles of impeachment on a straight partisan vote. Article One alleged perjury before the federal grand jury. Article Two alleged perjury in a sexual harassment case. Article Three alleged obstruction of justice through witness tampering. Article Four alleged perjury in the President’s answers to Congress. On December 19, 1998, the House approved two of the four articles of impeachment: perjury before the grand jury and obstruction of justice. In both votes, although Republicans and Democrats crossed party lines, the final vote remained largely partisan. The impeachment was technically initiated on October 8, 1998 and the articles approved on December 19, 1998.
The Senate trial of President Clinton began on January 7, 1999, with Chief Justice William H. Rehnquist taking the oath. The rule adopted by the Senate created immediate problems for the House managers. The rules specifically required the House managers to prove their case for witnesses and imposed a witness-by-witness Senate vote on the House managers. Because the Independent Counsel had supplied an extensive record with testimony from key witnesses, the need to call witnesses like the Nixon hearings was greatly reduced. For that reason, the House moved quickly to the submission of articles of impeachment after the hearing of experts. However, the Senate only approved three witnesses, described by House manager and Judiciary Committee Chairman Henry Hyde as “a pitiful three.” It proved fateful. One of the witnesses not called was Lewinsky herself. Years later, Lewinsky revealed (as she might have if called as a witness) that she was told to lie about the relationship by close associates of President Clinton. In 2018, Lewinsky stated Clinton encouraged her to lie to the independent counsel, an allegation raising the possibility of a variety of crimes as well as supporting the articles of impeachment The disclosure many years after the trial is a cautionary tale for future impeachments, as the denial of key witnesses from the Senate trial can prove decisive.
The Clinton impeachment was narrow but based on underlying criminal conduct largely investigated by an Independent Counsel. The allegation of perjury of a sitting president was supported by a long investigation and extensive record. Indeed, the perjury by Clinton was clear and acknowledged even by some of his supporters. The flaws in the Clinton impeachment emerged from the highly restrictive and outcome determinative rules imposed by the Senate. In comparison, the Trump impeachment inquiry has raised a number of criminal acts but each of those alleged crimes are undermined by legal and evidentiary deficiencies. As discussed below, the strongest claim is for a non-criminal abuse of power if a quid pro quo can be established on the record. That deficiency should be addressed before any articles are reported to the floor of the House.
A comparison of the current impeachment inquiry with the three prior presidential inquiries puts a few facts into sharp relief. First, this is a case without a clear criminal act and would be the first such case in history if the House proceeds without further evidence. In all three impeachment inquiries, the commission of criminal acts by Johnson, Nixon, and Clinton were clear and established. With Johnson, the House effectively created a trapdoor crime and Johnson knowingly jumped through it. The problem was that the law—the Tenure in Office Act—was presumptively unconstitutional and the impeachment was narrowly built around that dubious criminal act. With Nixon, there were a host of alleged criminal acts and dozens of officials who would be convicted of felonies. With Clinton, there was an act of perjury that even his supporters acknowledged was a felony, leaving them to argue that some felonies “do not rise to the level” of an impeachment. Despite clear and established allegations of criminal acts committed by the president, narrow impeachments like Johnson and Clinton have fared badly. As will be discussed further below, the recently suggested criminal acts related to the Ukrainian controversy are worse off, being highly questionable from a legal standpoint and far from established from an evidentiary standpoint.
Second, the abbreviated period of investigation into this controversy is both problematic and puzzling. Although the Johnson impeachment progressed quickly after the firing of the Secretary of War, that controversy had been building for over a year and was actually the fourth attempted impeachment. Moreover, Johnson fell into the trap laid a year before in the Tenure of Office Act. The formal termination was the event that triggered the statutory language of the act and thus there was no dispute as to the critical facts. We have never seen a controversy arise for the first time and move to impeachment in such a short period. Nixon and Clinton developed over many months of investigation and a wide array of witness testimony and grand jury proceedings. In the current matter, much remains unknown in terms of key witnesses and underlying documents. There is no explanation why the matter must be completed by December.
After two years of endless talk of impeachable and criminal acts, little movement occurred toward an impeachment. Suddenly the House appears adamant that this impeachment must be completed by the end of December. To be blunt, if the schedule is being accelerated by the approach of the Iowa caucuses, it would be both an artificial and inimical element to introduce into the process. This is not the first impeachment occurring during a political season. In the Johnson impeachment, the vote on the articles was interrupted by the need for some Senators to go to the Republican National Convention. The bifurcated vote occurred in May 1868 and the election was held just six months later.
Finally, the difference in the record is striking. Again, Johnson’s impeachment must be set aside as an outlier since it was based on a manufactured trap-door crime. Yet, even with Johnson, there was over a year of investigations and proceedings related to his alleged usurpation and defiance of the federal law. The Ukrainian matter is largely built around a handful of witnesses and a schedule that reportedly set the matter for a vote within weeks of the underlying presidential act. Such a wafer-thin record only magnifies the problems already present in a narrowly constructed impeachment. The question for the House remains whether it is seeking simply to secure an impeachment or actually trying to build a case for removal. If it is the latter, this is not the schedule or the process needed to build a viable case. The House should not assume that the Republican control of the Senate makes any serious effort at impeachment impractical or naïve. All four impeachment inquiries have occurred during rabid political periods. However, politicians can on occasion rise to the moment and chose principle over politics. Indeed, in the Johnson trial, senators knowingly sacrificed their careers to fulfill their constitutional oaths. If the House wants to make a serious effort at impeachment, it should focus on building the record to raise these allegations to the level of impeachable offenses and leave to the Senate the question of whether members will themselves rise to the moment that follows.