Friday, May 17, 2019

Impeachment: An historical perspective



Should the Democrats in the House of Representative decide to impeach President Trump, this will be the fourth time in our history that Article II, section 4 of the Constitution has come into play.  A review of the three earlier cases reveals two different patterns in these four actual or prospective episodes, and casts doubt on the wisdom of impeachment from the Democrats’ point of view.

Andrew Johnson, who succeeded the assassinated Abraham Lincoln in April 1865, is one of the most striking illustrations of the pitfalls of the institution of the vice president.  A Democrat from East Tennessee who had rejected secession and stayed in his seat in the Senate after 1861, he won the Republican vice presidential nomination in 1864 to give the wartime ticket the broadest possible appeal.  He turned out, however, to be a fairly typical hill country white southerner, who hated both big planters and freed slaves, and he refused to cooperate with the Radical Republicans in the Congress with respect to Reconstruction, favoring the quick readmission of the southern states on terms that would leave the whites in power.  After the Republicans won veto-proof majorities in the Congressional elections of 1866, they passed a series of tough reconstruction measures over his veto, and union generals effectively governed much of the South under the sympathetic eye of Secretary of War Edwin Stanton, whom Johnson had inherited from Lincoln. Then, to prevent Johnson from removing Stanton, they passed a new Tenure of Office Act, giving the Congress an unconstitutional power to prevent the President from removing cabinet officers without its consent. Johnson expressly defied them by trying to replace Stanton early in 1868.  Even though Johnson would surely fail to re-elected (as it turned out, he was not even nominated by the Democrats) later that year, the Republicans decided to impeach him.   Given the partisan nature of the whole controversy and the act that Johnson had been accused of violating—which was quickly revised as soon as his Republican successor took office—it was not surprising that a handful of Republican Senators refused to vote for conviction, and a 35-19 vote left Johnson in power for ten more months by a single vote.

Richard Nixon, on the other hand, was riding high in early 1973, when a series of revelations showed that his re-election committee’s involvement in the Watergate break-in the year before had been covered up by a conspiracy including top White House aides.  Nixon had to appoint Archibald Cox as special prosecutor, but had him fired when Cox subpoenaed tape recordings which, as it turned out, proved that Nixon himself had participated in the cover-up as well.  An impeachment investigation began in February 1974, and on July 27-30, the House Judiciary Committee, with six Republicans joining 21 Democrats, impeached Nixon for obstruction of  justice, abuse of power, and contempt of Congress.  The full House would have undoubtedly followed suit, but before it could vote, Nixon lost his attempt to keep other tapes secret in the Supreme Court, and a new tape transcript confirmed his guilt.  With all support in the Senate collapsing, he resigned.  His responsibility for paying off witnesses to remain silent and using the CIA to try to stop the FBI investigation of Watergate had been clearly established.

By 1998, when he had been President for six years, Bill Clinton had been dealing with Ken Starr’s Whitewater investigation for some years.  Starr never brought any charges against the President over Whitewater, but he had extended his mandate into issues arising from a sexual harassment lawsuit against Clinton by Paula Jones, including the President’s brief sexual relationship with Monica Lewinsky. Although the two had never had intercourse, Clinton gave misleading statement s about their relationship both to a grand jury and to the public. During 1998 Starr released his detailed and explicit report showing that the President had lied about their relationship, and House Speaker Newt Gingrich began pushing for, and campaigning in the fall for, impeachment.  The Republicans lost a few seats in the fall elections and Gingrich resigned as speaker, but when Congress convened after the election, a lame duck session impeached Clinton for perjury and obstruction of justice (the latter charge based in part on his attempts to persuade Lewinsky to help conceal their relationship.)  Only a handful of House Democrats voted for impeachment, and a matching handful of Republicans opposed it.  The newly elected Senate, which had a 55-45 Republican majority, tried Clinton on these counts in January and February, and the Senate rejected the perjury charge by a vote of 55-45 against conviction, and the obstruction charge by a tie vote of 50-50 (67 votes would have been required for conviction.)  A partisan House majority (including Lindsay Graham) had insisted on an impeachment on charges having nothing to do with the President’s conduct of his office that had no chance of leading to conviction.

How would the impeachment of Donald Trump fit into this historical picture?

A fair reading of the Mueller report, in my opinion, suggests that President Trump committed acts designed to obstruct justice, including the firing of James Comey, the request to White House Counsel Don McGann to remove Mueller, the public intimidation of witnesses, and the dangling of possible pardons before defendants like Steven Cohen and Paul Manafort. What differentiates his case from Nixon’s, however, is that none of these steps seems to have been successful, and that Mueller failed to find an underlying crime that Trump was trying to conceal.  Comey’s firing led to Mueller’s appointment and a thorough investigation, McGann refused to remove Mueller, and Cohen and Manafort turned state’s evidence (although Manafort apparently continued lying on many points) and are now in prison.  Trump subordinates including Attorney General Barr and Secretary Treasury Mnuchin are now putting themselves in contempt of Congress—one of the charges against Nixon—but they, not the President, would presumably be the targets of impeachment on those grounds.  One may feel, as I do, that Trump’s election represented a collapse of American democracy and that he shows on a daily basis that he is unfit for office, but also feel that no offense has been demonstrated that rises to the level of “high crimes and misdemeanors.”  That would certainly support the charge that an impeachment would be mainly a partisan measure.

Of the three previously impeached (or nearly impeached) presidents, Nixon alone had indisputably committed serious offenses against the law and the Constitution.  He alone earned significant bipartisan support for his impeachment and conviction, and he alone would have been convicted in a Senate vote. Trump, like Johnson and Clinton, would surely avoid conviction because no member of his own party would vote for it.  Impeachment and trial would become yet another partisan spectacle of the kind that much of the country is already heartily sick of.  The remedy for the Trump Presidency lies at the polls.

5 comments:

Bozon said...

Professor
Very interesting historical and comparative article.
I disagree about the history re Johnson, but will save my comments for my blog.
It may be useful to just look at 18 USC 1505, to get a flavor of how it can be used and abused:

"Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both."

All the best

Bozon said...

Professor
Just a fn:
Perjury is a whole lot cleaner, it seems to me, to prosecute than obstruction.
All the best

Energyflow said...

At the polls. Right. The 3 impeachments(including Trump) were partisan politics. Nixon the 4th was clearly criminal and would have deserved jail. The latest situation was however not just partisan fishing expedition a la whitewater but rather, as it seems by all indications, entrapment, espionage by loyal partisans at FBI, CIA, Justice Dept. And that is before the election. After he was elected the charge is high treason as Trump is President. Against Andrew Johnson the whole matter seemed worse than even that but one would have to admit that the Civil War was illegal as states had the right of seccession. As we see now in Brexit, law and logic have little effect when emotions are so strong. Divorce is very messy. So dirty tricks between dems and repubs is fair play but revenge also from the Trump team on worst players against him. This will draw a line in the sand for future players in bureaucracy who also have party loyalties wanting to form independent policy, going beyond acceptably legal role. The British series Yes Minister gone wild is what happened here. Your Kennedy Assasination book with its well balanced analysis of players, motives, nonpartisan analysis going beyond lone assassin or CIA plot to more nuanced view is called for. Actually this is high drama.

I read that the rebuttal of obstruction of justice charge was key to Trump's success. Obstruction only counts in a court case/legal proceedings. Apparently Trump is going to take congress apart for overstepping authority. Good lawyers. Watergate has its revenge. The presidency is back with full brutal authority. No more 60s weakness. Power consolidation will now take place behind executive branch. So the crisis renewal stage can start. 2020 election will consolidate Trump's power as dems keep believing their own propaganda, like any other false flag. Only you can't get elected focusing on a false narrative while voters see wrong policies ignored. Identity politics only goes so far. Trump made his name into a trademark like coke or Apple. That is the ultimate in identity politics. He knows his business. They can't outplay the master of the game here. They hate him 'personally', this is worse than any charge or reality of sexism, racism against him which are oh so abstract. He just uses this tactic to distract them from serious campaigning and governing. It worked. He got elected, now he has smoked out the worst extremists in the bureaucracy. Essentially he is a lightning rod for hatred, adoration on both sides. Perfect for uniting the country after everyone's 'shadow' in jung's sense has been cleansed. So perhaps Trump is a blessing. No Civil War, no WWIII, just a national psychological cleansing through an arrogant playboy billionaire sometimes democrat, sometimes republican but always just himself. Sort of a rogue James Bond or a Bourne identity film.

Shelterdog said...

This says more about Congress than about the presidents. If Nixon had this Congress and Trump had the Congress in 1973-74, no doubt that Trump would have been tossed out and Nixon would have finished his term of office.

Bozon said...

Professor
Fn 2, re obstruction:

Obstruction applies in both judicial and non judicial contexts.
The specifically judicial statute is 18 USC 1503, not the one I had quoted.
All the best