1 Impeachment and Presidents Richard Nixon and Bill Clinton By John E. Semonche Article II, section 4 of the Constitution of the United States provides that "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article I gives to the House of Representatives the responsibility of determining, by a simple majority, whether an official should be impeached. Once the House so determines, the resulting trial takes place in the Senate, where conviction requires the vote of two-thirds of the members present. Because the regular presiding officer in the U.S. Senate is the vice-president, the Constitution replaces him with the Chief Justice of the U. S. Supreme Court in cases where the person being tried is the president. We might wonder how a process so deeply immersed in politics could provide a fair and impartial trial. The Constitution's framers did not intend to preempt the normal legal process, and therefore provided that, although the removed official was barred from federal office, he or she "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." So, whether impeached officials were convicted and removed from office or not, they would still be subject to the normal legal processes. The impeachment provision is less designed to establish guilt than it is to remove from office individuals, who, by their actions, have forfeited the public's trust. In 1787, during deliberations at the Philadelphia Convention that drafted the Constitution, a proposal to impeach federal officials for "maladministration" was rejected. Instead, the language that found its way into the fundamental law--treason, bribery, or other high crimes and misdemeanors"--still left considerable room for interpretation. The most pressing question seemed to be did such language require a finding that the official committed some crime indictable at law? Prior to the latter twentieth century the constitutional provisions regarding impeachment had been most invoked against federal judges who had engaged in criminal conduct. Only one president had been impeached. That was Andrew Johnson who assumed the presidency on Abraham Lincoln's assassination. For resisting Congressional control of the Reconstruction process in the aftermath of the Civil War, Johnson was impeached. He escaped removal from office by a single vote in 1868. Our task, however, is not to examine the complexities of the Johnson impeachment but rather to look at the trials and tribulations of two relatively recent presidents who endured impeachment inquiries--Presidents Richard M. Nixon and Bill Clinton. 2 Richard Nixon had served in the House and the Senate and as vice--president during Dwight David Eisenhower's two terms before winning the top office in the closely-contested election of 1968. Nixon had lost his first bid for the presidential office in 1960 to John F. Kennedy and also a bid for the governorship of California in 1962. He was a combative politician who had indeed alienated more than a few persons during his many campaigns for office. During his reelection campaign in 1972, a break-in at Democratic Party headquarters in the Watergate Hotel in Washington, D. C. excited little public attention and had no effect on Nixon's landslide victory. It did, however, garner some attention at the Washington Post. Reporters Carl Bernstein and Bob Woodward were assigned to the task of finding out whether the break-in was only part of a larger story. Their relentless pursuit of information would be detailed in their book, All the President's Men, and would contribute to the downfall of the president The trial of the apprehended Watergate burglars focused attention on their connection to the White House. A Senate committee, under the chairmanship of North Carolina's Sam Ervin, began investigating the connection. One of the president's lawyers, John Dean, testified that the president had indeed worked to cover up White House involvement in the burglary. But as long as it was simply Dean's word against his, Nixon was safe. In the process of its hearings, however, the committee learned that the president had installed a taping system in the Oval Office that was voice activated. As close advisors to the president were forced to resign because of the Watergate affair, Nixon guarded the tapes and resisted attempts by the Senate committee and the special prosecutor to obtain them. Some transcripts and tapes were furnished, but the struggle continued. The House of Representatives began to consider impeachment, but the president's defenders said direct evidence of Nixon's participation in a cover-up was lacking; there was no "smoking gun." Then, the Supreme Court ruled in July 1974 that a claim of executive privilege could not defeat a subpoena from the special prosecutor to produce certain tapes. Complying with the order to hand over the requested tapes, Nixon, himself, produced the "smoking gun." What was on the tapes silenced his remaining supporters and seemed to insure his impeachment. There was no evidence that Nixon knew about the planned break-in, but his complicity in the cover-up was well documented by the tapes. Although the House Judiciary Committee drafted three articles of impeachment, the most relevant one concerned the cover-up of the Watergate burglary. Introducing a list of particulars that clearly outlined the crime of obstructing justice, it read as follows: "Richard M. Nixon, using the powers of his high office, engaged personally and through his subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such unlawful entry; to cover up, conceal, and protect those responsible; and to conceal the existence and scope of other unlawful covert activities." Rather than face a formal vote in the House and subsequent trial in the Senate, Nixon resigned on August 8, 1974, the first person in that office ever to do so. Since his 3 elected vice-president, Spiro Agnew, had earlier resigned in connection with a criminal inquiry, Nixon's successor would be Gerald Ford, the former Michigan Congressman, whom the president had appointed to the office upon the resignation of Agnew. Although Senator Ervin concluded that Watergate was "the greatest tragedy this country has ever suffered," Nixon believed he had done nothing wrong, nothing that different from what had been done by others who had occupied the presidential office before him. Furthermore, he told an interviewer that actions committed by the president in the national interest cannot be considered criminal. In other words, from his perspective the president was above the law, not subordinate to it. Many observers felt that what the resignation accomplished was to demonstrate that the American constitutional system worked. Others believed that the lesson taught was the need for a president to be honest and forthcoming with the American people. Had Nixon owned up to the connection between his advisors and the burglary early in the process, the American people, in all likelihood, would have forgiven him. Nixon had not been impeached; he departed before he could be. He had sought to obstruct the legal process in a matter of legitimate public interest. There seemed to be little doubt, no matter how the requirements for impeachment are read, that Nixon had committed an impeachable offense. Resignation enabled him to keep the perks of a retired president, the pension and the additional sums for an office and staff. Although he could have been subjected to punishment under the criminal law, President Ford gave Nixon a blanket pardon, freeing him from any prosecution for activity he engaged in during his presidency. Ford said that his predecessor had suffered enough by being forced to resign the presidential office. Further prosecution, he added, would only prolong the suffering, both Nixon's and the nation's. Politics is a matter of contending for office, and it has become in recent times a messy business. That there were those persons who hated Nixon is not in doubt, but neither is the hatred directed at a subsequent occupier of the Oval Office, Bill Clinton. Unlike Nixon who had been schooled in national politics, Clinton's political teeth were cut in Arkansas as governor. His very naïveté in the national arena enabled him to enter the contest for the Democratic Party's nomination when the more knowledgeable candidates were viewing George Bush as unbeatable in 1992. However, the popularity Bush had gained by the Gulf War ebbed away with a worsening domestic economic situation. As a candidate Clinton had to weather accusations of sexual infidelity that had doomed at least one earlier candidate for the presidency, but weather the storm he did to become a two-term president, the first Democrat to serve two full terms since Franklin D. Roosevelt. Whether he would survive to establish this record, however, was placed in doubt by his impeachment in 1998. To traverse the course from an investigation by a special prosecutor of the Clintons' role in an Arkansas land deal that went bad to the discovery of a sexual liaison 4 that the president had with a White House intern one must follow a rather tortuous path. The failure of the special prosecutor, Kenneth Starr, to find any wrongdoing by the Clintons in the land deal did not stop him from launching a broad ranging investigation of the president. Unlike the special prosecutors involved in Watergate, Starr did not steer clear of partisan politics or prevent leaks about his activities. It was this overreaching that made the whole impeachment campaign suspect, causing many observers to wonder if the attack was more of a partisan vendetta than a legitimate matter of public interest. However, not only Republicans but also some Democrats were upset with Clinton's standards of sexual morality. Should not the president be a better role model? Clearly a president should not lie under oath, but should such a lie, when it concerned a matter in which truth is often a stranger, rise to an impeachable offense? Clearly the voters did not think so, as the 1998 mid-term elections saw Democratic gains not losses in the House of Representatives. It was the first time since 1934 that the party that had won the previous presidential election would gain seats in the House. The electoral result, however, still left the House in control of the Republicans, who used their majority to impeach the president. On December 19, 1998 the House voted two articles of impeachment against the president. Both concerned his conduct in seeking to hide his sexual relationship with the intern, leading both to perjury and obstruction of justice charges. Unlike Andrew Johnson's impeachment trial, those Senators interested in removing Clinton were unable to muster even a majority, let alone the two-thirds required, to affect his exit. The decisive vote was taken on February 12, 1999. On the perjury charge, the vote was 45 for, 55 against; and on the obstruction of justice charge it was 50 to 50. Even some Republican Senators refused to follow their compatriots in the House that had voted to impeach. The whole process from impeachment through acquittal had taken less than two months. This speed was the result of a considerable reliance in both houses of Congress on the material that the special prosecutor had prepared, which was subsequently published as The Starr Report. Contrary to some expectations, Clinton survived to serve out his second term with continued popularity. As with Nixon, Clinton did not have to answer to the criminal law upon the conclusion of his presidency. A deal was worked out with federal officials to free him from any subsequent prosecution. As we began this survey, we acknowledged how much the impeachment process was immersed in politics. As a result of this fact, a president whose party controls both houses of Congress generally has nothing to fear. The Clinton impeachment, however, demonstrates how impeachment can be employed to serve partisan ends. The fact that Clinton was not removed, and some would say Andrew Johnson as well, indicates that partisan vindictiveness can be, and has been, contained. On the other hand, in the Nixon case, even the Republicans who manned the barricades until the very end had to concede that evidence of the commission of an impeachable offense was inescapable. 5 Although there is much support for the view that an impeachable offense must constitute a crime, we might pause to ponder this conclusion. As the holder of an office that has become only more powerful over time, the president can do much that is not a concern of the criminal law. The president takes an oath to execute the law. What if he fails in this obligation? What criminal law has he violated? Is his failure to execute the law an important matter of public concern? Should we continue to measure the fitness of any federal official only in terms of a criminal law drafted for much different purposes? At the very least, such questions are worth considering.