Today’s flash back is on the impeachment that never was — Richard Nixon and Watergate.  While President Nixon held on until the writing on the wall was crystal clear, he ultimately did the honorable thing and resigned.  While that was a good thing for the country, it was a bad thing in the sense that it deprived us of an example of how an impeachment that had actual merit should work.

Watergate was a complex scandal in which the original issues morphed during the process.  And there were other issues about how Nixon had governed during his first term.  But at the heart of Watergate were the operations of the Committee to Re-Elect the President (which eventually got the appropriate nickname of CREEP).  Among the numerous ethically questionable attempts at disinformation and disruption related to the potential Democratic candidates, operatives of CREEP burglarized the offices of the Democratic National Committee (then located in the Watergate Office Building) in an effort to obtain documents and wiretap the office.  The operatives were a little sloppy and some of them were caught.  That led to the President (and his staff) engaging in an effort to cover-up the campaign’s connection to the burglary.  The cover-up initially worked, and Nixon easily won the 1972 election.

After the 1972 election, the House and the Senate began to hold hearings into the matter.  By April, a special prosecutor had been appointed.  The hearings led to the revelation that Nixon had a taping system for the Oval Office.  When the special prosecutor attempted to subpoena the tapes, Nixon fired the special prosecutor.  (Because the special prosecutor answered to the Attorney General, Nixon actually ordered the Attorney General to fire the special prosecutor.  Both the Attorney General and the Deputy Attorney General resigned instead of complying with the order.  That left the Solicitor General (Robert Bork) as the acting Attorney General, and he complied with Nixon’s order.)  In the aftermath of this blatant interference in the investigation, the Judiciary Committee opened a staff inquiry into possible impeachment in October 1973.  In February 1974, the House formally authorized an impeachment inquiry.

Meanwhile, the controversy over the firing of the first special prosecutor forced Nixon to appoint a new special prosecutor who continued the effort to subpoena the tapes.    In March 1974, the special prosecutor obtained indictments of  several (by then former) Nixon aides.  The grand jury also prepared a report, sent to the House, detailing its conclusions about possible crimes committed by the President that might be impeachable offenses.  In response to the growing pressure, Nixon released redacted transcripts of the tapes.  As in the current impeachment process, the redacted transcripts were more incriminating than exculpatory and the pressure continued to grow while the Nixon White House fought the attempts to force disclosure of the raw unredacted tapes.

During the lead-up to the formal impeachment hearings, the Judiciary Committee’s staff prepared a lengthy report on the history of impeachment.  Among other things, that report concluded that the conduct warranting impeachment did not have to a federal or state offense to qualify as a “high crime or misdemeanor.”  The formal hearings began in May 1974.  The majority of the next ten weeks of hearing took place in executive session (i.e. closed to the public and reporters).

While the hearings were taking place, the fight over the release of the tapes continued in the courts.  On July 24, the Supreme Court unanimously ordered the White House to release the tapes.  In the aftermath of this order, the House Judiciary Committee was drafting, amending, and approving articles of impeachment to submit tot he full house.  The Committee approved the following articles of impeachment:  1) obstruction of justice for interfering with the Watergate criminal investigation and related cover-ups; 2) abuse of power — both using governmental power to harass political enemies and to obstruct justice in the Watergate investigation; and 3) contempt of Congress for defying the subpoenas of the Judiciary Committee during the impeachment inquiry.   The Committee rejected articles of impeachment related to the bombing of Cambodia, tax fraud, and domestic emolument issues.

The Committee referred these three articles of impeachment to the full House.  The House tentatively scheduled its consideration of those articles for August 19.

After the Committee vote, on August 5, the tapes were released including the infamous smoking gun tape with eighteen minutes of audio apparently erased.  In the aftermath of the release of the tapes, Nixon was informed by senior Republican legislators that, if and when the House passed the articles of impeachment (likely given the Democratic majority of 242 to 193 in the House), there were likely enough Republican votes for conviction and removal to get to the requisite 67 Senators.  (At that point, the Democrats had a 56-42 majority in the Senate with two independents — one caucused with the Democrats and one with the Republicans.  As such, at least ten members of the Republican caucus would have had had to vote for conviction for Nixon to be convicted.  Apparently, Nixon was told that it was likely that the majority of Republican Senators would vote for conviction.)    Within days of the meeting with these legislators, Nixon resigned bringing the impeachment process to an end before any articles of impeachment were formally passed.

For lawyers and historians, Nixon’s resignation eliminated the opportunity to see how a modern presidential impeachment trial would work as well as having the House and Senate vote to impeach and remove a president from office without finding him guilty of a crime.   As noted above, if Nixon had not resigned, he would have been impeached.  And if he had been impeached, there would have been a full trial in the Senate.  And, it is likely that the Senate would have found the President guilty of and removed him for multiple articles of impeachment including some that did not allege criminal conduct.

The lack of this precedent leaves room for Moscow Mitch and Alan (don’t bother me with what I have said in the past, my legal opinions are whatever helps the Republican Party) Dershowitz to argue that you don’t actually need a trial but you do need a criminal offense for removal.  As the report of the House Judiciary Committee prepared in 1974 shows, both contentions are wrong as a matter of history and the intent of the Framers, but the current Republican majority just merely likes to claim that they love the Constitution while disregarding it whenever it is inconvenient.   It also left the impeachment of Bill Clinton (which had some very unique features that make it a bad precedent) as the only recent impeachment of a U.S. president.

By this time next week, we will be at the moment of truth when Susan Collins, Mitt Romney, Lisa Murkowski, Lamar Alexander and other Republican Senators will have to decide if their oaths of office and their honor matters more than keeping their seats.  If their oaths of office have meaning to them, the Senate will subpoena John Bolton and Mick Mulvaney (and probably others) to testify.  If not, then we will see no subpoenas and impeachment will be over before the Iowa Caucuses.