Now that House Speaker Nancy Pelosi has announced that official impeachment proceedings are underway against President Donald Trump, the question is what is the best way forward.
The Constitution does not prescribe rules of procedure for the House—it just states that the House must vote by a simple majority to impeach, and the Senate must convict by a two-thirds vote after a trial in order to remove a president from office.
Two presidents have been impeached by the House, but no president has ever been convicted by the Senate. Richard Nixon, after a bipartisan vote for impeachment in the House Judiciary Committee on which I then sat, resigned in the face of overwhelming evidence and the certainty of both impeachment by the whole House and conviction by the Senate.
The Constitution does, however, set forth the grounds for impeachment and removal: “treason, bribery and other high crimes and misdemeanors.” Treason is defined in the Constitution, and bribery is a well understood act.
But the term “high crimes and misdemeanors,” which derives from ancient British parliamentary practice, is a bit confusing. It does not mean a criminal act—a precedent established by the House Judiciary Committee in its vote on the Nixon impeachment articles and one that accords with most scholars’ views. Instead, the term means an egregious abuse of power that threatens our democracy or the liberties of the American people.
Trump’s misdeeds have repeatedly met the standard of high crimes and misdemeanors—in the president’s bullying Ukraine to manufacture dirt on former Vice-President Biden, thereby calling on a foreign country to interfere in our 2020 elections; in his efforts to stymie investigations into his apparent collusion with the Russian government in the 2016 election (as spelled out in the Mueller Report); in his refusal to ensure that our election infrastructure is safe from foreign tampering; in his lawless program of separating thousands of children from their parents at the Southern border, causing serious and long-lasting harm to them; and in his flagrant violation of the Constitution’s emoluments clauses that prohibit payments to the president personally from states and the federal government, and from foreign governments without the approval of Congress.
One procedural issue facing the House is whether it will focus just on Trump’s misconduct regarding Ukraine. That may be a mistake. In the Nixon impeachment effort—the only one that succeeded in removing a president—the Judiciary Committee did not deal only with Nixon’s cover-up of the Watergate break in—as multipronged and egregious an abuse of power as that was. (The cover-up included the payment of hush money to the burglars, offers of presidential pardons to stop them from cooperating with the prosecutors, suborning perjury, getting the CIA to stop the FBI’s investigation, and much more.)
Instead, the impeachment articles charged other serious presidential abuses, such as the authorization of illegal wiretaps of journalists and White House staffers, including one who left to work for Nixon’s chief political opponent, allowing Nixon’s team to monitor his campaign; the direction of IRS audits of his political opponents; and the White House’s involvement in the break-in of Daniel Ellsberg’s psychiatrist’s office (Ellsberg had stolen the Pentagon Papers) to obtain information with which to smear him.
The Judiciary Committee vote to impeach Nixon wasn’t for one grave abuse of power. It was for a whole presidency run amok.
The case has to be clearly made that Trump presents a broad-based threat to our democracy and that his removal from office is the only way to protect against that threat. The Nixon proceedings did that. The impeachment articles against Trump do not need to include all of his misconduct, but they shouldn’t minimize the scope of that misconduct either.
Similarly, there is a question of the timeline. Some feel that articles of impeachment need to be voted on immediately. While the House should not drag its feet, neither should it act precipitously. After the Judiciary Committee was authorized to conduct an impeachment inquiry against Nixon, it took a little over five months before the articles were drafted, debated and voted.
It is vital for the process to appear thoughtful, measured and consonant with the gravity of what is at stake, instead of looking rushed or political. It is possible that the closer we get to the 2020 elections, the less likely senators may be to vote to convict and the more likely they may be to leave removal to the election—so no one should dawdle. But there has to be a middle ground.
One solution might be to give each of the six committees conducting investigations responsibility for securing and marshaling the evidence within its purview. For example, the House Intelligence Committee could focus on Ukraine, Banking or Oversight on emoluments, Judiciary on the Mueller Report findings. Splitting up the workload might speed things up. In any case, the committees need to create a central focus, clear priorities, and establish a plan of action and a timeline.
Another issue that has arisen relates to the interrogation of witnesses. Both the Robert Mueller and the Corey Lewandowski hearings created concerns, primarily because the number of members asking questions broke up the narrative, and not all of the questioners were experienced. If public investigative hearings are to be held, then a smaller group of members should conduct them with much greater participation of committee lawyers.
If we take the example of Watergate, a substantial part of the House Judiciary Committee’s evidence was the result of the work of the Senate Select Committee. (The rest came from the Watergate grand jury.) That committee was comprised of seven senators, but the questioning was led off by a staff lawyer who asked the basic questions and set the stage for senators’ questions. That committee obtained John Dean’s critical testimony about the cancer on the presidency and uncovered the existence of the White House tapes. It is a useful model.
A final word about fairness and bipartisanship. In the Nixon proceedings, Judiciary Committee Chairman Peter Rodino, a Democrat, knew that the public would not accept a partisan railroading of Nixon. As a result, he bent over backwards to create a perception of fairness, going so far as to appoint a Republican counsel to head the impeachment inquiry. (Of course, the Republicans picked a Republican counsel for their side.)
This kept the focus on the facts. Having a respectful process, I believe, permitted the three Southern Democrats, who represented strongly pro-Nixon districts, and seven Republicans to join in the impeachment vote. That in turn helped to persuade the country that the impeachment process was just and justified.
Obviously, times have changed. But people can still be persuaded by solid evidence and a fair process. Two Republican governors just announced support for an impeachment inquiry. All the Republicans in the Senate just voted to have the whistleblower’s complaint about Ukraine forwarded to the Intelligence Committees.
Nixon resigned because the House Judiciary Committee did its impeachment work in the right way. We need to keep that in mind.