Today’s heightened political partisanship makes it essential to strengthen the process of impeachment.
Impeachment today has devolved into political theater. It is now an exercise in scoring points, rather than the weighty task of determining when a federal official’s removal from office is required to protect the U.S. Constitution.
A recent reunion — a 50th anniversary gathering of the living members of the President Nixon impeachment inquiry staff of the U.S. House Judiciary Committee — provided an opportunity to reflect on that weighty task. It offers lessons for today, half a century later.
I served as the task force leader for the Watergate and cover-up issues on the inquiry staff. On May 4, 2024, I joined most of my living colleagues in marking the anniversary. The occasion included two panel discussions at the Kluge Center of the Library of Congress; a video of those discussions is available.
As I reflect on those discussions, three key lessons emerge for me as vital to returning impeachment to its crucial role of protecting constitutional government from officials who would undermine it.
First, impeachment should be motivated by a constitutionally rooted need to consider removal of a president or other high-ranking official. At the reunion, Francis O’Brien, former chief of staff to House Judiciary Committee Chairman Peter Rodino, observed that even after the Senate hearings in 1973, when former White House counsel John Dean testified about a Watergate cover-up, there was no significant consideration of impeachment until the “Saturday Night Massacre.”
The Massacre involved a chain of events in rapid succession. President Nixon ordered Attorney General Elliot Richardson to fire special prosecutor Archibald Cox; Richardson refused and resigned; Acting Attorney General William Ruckelshaus, faced with the same order, also refused and resigned; finally, the next acting attorney general, Robert Bork, fired Cox. The FBI was then ordered to seal off the special prosecutor’s offices.
Those events created a constitutional crisis by threatening the viability of the criminal justice system to prosecute crime and calling into question whether the president would fulfill his constitutional duty to faithfully execute the laws. A few months later, the inquiry into the impeachment was authorized by a vote of 410-4 — a level of bipartisanship hard to imagine today.
Rather, impeachment today is being made into a purely partisan tool. Last year’s inquiry into the impeachment of President Biden, passed by a party-line vote, was not caused by anything approaching a constitutional crisis. A similar cheapening of the process was shown in the recent impeachment of Homeland Security Secretary Alejandro Mayorkas.
Second, the inquiry process should be held behind closed doors, so as to reduce the inevitable political theater, preferably with a staff that is not split by party affiliation. In the Nixon impeachment inquiry, the special counsel was a member of the president’s party, which seems quaint today.
Securing bipartisan support, however — seven out of 17 Republican committee members voted for Nixon’s impeachment — required weeks of closed-door hearings to lay the fully documented facts before the members. This painstaking and deliberative process put committee members in a good position to decide on articles of impeachment in a way the country, and particularly their constituents, perceived to be fair.
Third, the impeachment process should not be linked to the criminal justice process, as was recently advocated in a U.S. Supreme Court hearing on Donald Trump’s claim of presidential immunity from all criminal prosecution. In that hearing, lawyers for Trump argued that a president could only be prosecuted criminally if he had first been impeached by the House and convicted by the Senate.
Nixon used official powers to obstruct justice, a criminal offence. Among other things, he orchestrated a scheme to have the Central Intelligence Agency make the FBI back off its investigation of the Watergate break-in due to fictitious national security concerns.
There is no dispute that, had Nixon been convicted in the Senate, he would have been subject to prosecution for this obstruction of justice. The Constitution expressly mandates this outcome.
Yet Trump’s position would hold that impeachment and conviction are a necessary precondition to criminal liability. Nixon therefore could not have been prosecuted, because he avoided conviction in the Senate by resigning.
It seems fairly certain, based on the questioning by Justice Amy Coney Barrett, that the Supreme Court will not accept Trump’s argument that impeachment and conviction are prerequisites for criminal prosecution. Still, the court would seriously dilute our system of checks and balances if it were to issue a decision under which Nixon would have been immune from prosecution for obstruction of justice related to illegal campaign activity.
Impeachment is not meant to be political theater, nor is resigning ahead of impeachment meant to be a free pass to avoid criminal prosecution. The two processes should therefore be kept separate.
Today’s heightened political partisanship makes it essential to strengthen the process of impeachment in this environment. Restoring its weightiness is crucial, and lessons from 50 years ago can illuminate the challenge.
Evan Davis was counsel and task force leader in the Nixon impeachment inquiry. He is co-editor of the American Bar Association book “Ethical Standards in the Public Sector: A Guide for Government Lawyers, Clients and Public Officials, 3rd Edition.”
