March 21, 2007
Contempt of Congress: The Article of Impeachment against Nixon

(Cross-posted at the Daily Kos and front-paged on Progressive Historians)

On the suggestion of some fellow Kossacks, I'm posting an expanded version of my comment on the thread about Dubya's tantrum as a full diary.

Follow me over the fold to consider a little piece history: The 3rd article of impeachment against Richard Nixon, adopted by the House Judiciary Committee on July 30, 1974; and see if it reminds you of anything.

RESOLVED, That Richard M. Nixon, President of the United States, is impeached for high crimes and misdemeanours, and that the following articles of impeachment to be exhibited to the Senate:



Article 3

In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

The grounds for the 3rd article were referred to as "Contempt of Congress" -- the other two were for "Obstruction of Justice" and "Abuse of Power". The subpoenas mentioned in the text of the article were for documents and tapes from the White House, subpoeanaed by the Judiciary Committee after it was authorized by the full House to investigate whether grounds existed for the impeachment of the President. Nixon refused to comply with any of them, and he also defied subpoenas by Special Prosecutor Leon Jaworski for more or less the same material -- primarily, the tapes. He defied Congress' subpoenas on the grounds of "executive privilege", an application of separation of powers claiming that one branch of government (the executive) should be able to deliberate in confidence, without fear that another branch (the legislature) could examine its secrets. Shortly before the Articles of Impeachment were adopted, the Supreme Court had found unanimously that Nixon was obliged to comply with Jaworski's subpoenas, allowing that there is such a thing as executive privilege, but that it did not extend to letting him conceal evidence of crimes.

The Judiciary Committee submitted the three articles for consideration by the full House; but before the House got to a vote on impeachment, Nixon released the disputed tapes, which did in fact contain the damning evidence everyone expected. Support for Nixon in Congress withered away, and on the urging of Barry Goldwater and other Republican leaders in Congress, Nixon resigned before the House got the chance to impeach him.

In the law and particularly during constitutional crises, the American system of government loves a precedent -- officers of the government, such as members of Congress contemplating their power to impeach, feel confident that they're not doing something crazy if they can point to history in which people with similar power did similar things under similar circumstances. So the 3rd Article of Impeachment against Nixon gives us the precedent to which we can point if Bush defies congressional subpoeanas, related to the US Attorney Purge or any other matter. If he refuses, then you can substitute the dates of the subpoenas and the name of the President in the text of the Article, and we're almost all set to go. Impeachment is the means that Congress has to compel Bush to do what he must; if he does not, then Congress can force him out of office. Bush and Cheney are famously obstinate and incorrigible, but we can't let those weaknesses of character corrupt the separation of powers that lies at the heart of our democracy. Congressional leaders better make it clear that the White House must comply or Bush will lose his job; and when (not if) he defies them, they better be prepared to follow through.

As I mentioned on the other thread, the current chairman of the House Judiciary Committee is John Conyers, who occasionally posts to the Daily Kos. Congressman, if you or one of your staffers is reading, you know what to do. You can go forward with confidence that I, and I presume many other participants on this site, will give you full and determined support.

There's something important worth mentioning about the 3rd article -- it justifies impeachment by the fact that the subpoenas in question were part of investigations regarding impeachment itself. As I mentioned, the Judiciary Committee was specifically authorized by the full House to investigate possible grounds for impeachment, and the subpoeanas were submitted to that end. By defying them, Nixon was doing what Patrick Fitzgerald recently described as Scooter Libby's crime -- "throwing sand in the umpire's face". Moreover, impeachment is a power that the Constitution specifically reserves to Congress. By deciding on his own whether or not the subpoenas were justified, Nixon was interfering with a prerogative that is solely reserved to the legislature, not to him.

The 3rd article was in fact the most controversial of the three that passed (two others were proposed that were not adopted), and it received fewer "Yea" votes than the other two (two Democrats on the Committee voted against it, although the Democrats were unanimous on the other two, and it received the least Republican support, with only two of them voting for it). Congressmen were a little cautious about taking their oversight power, which encompasses the power to subpoena, so far as to impeach a President for defying it. To be sure, any citizen who defies a congressional subpoena would be found in contempt of Congress and arrested; but some Congressmen wondered if the President did indeed have a separation of powers issue, that was at least strong enough that his defiance wouldn't rise to the level of "high crimes and misdemeanors".

It's possible, then, that the Nixon-era Congress would not have impeached him for defying just any subpoena; it mattered that the subpoenas were about impeachment itself. In their judgment, that truly went too far, because if the President can impede investigations related to impeachment, then Congress is effectively stripped of the power to impeach, and the President is forever protected from it.

That is likely to be the angle by which Bush and his supporters would argue that the Nixon precedent does not apply in current circumstances. The Judiciary Committee has not been authorized to examine the specific issue of impeachment; not yet anyway. If they just issue subpoenas to look into the Attorney Purge, then they're not clearly exercising the constitutional power to impeach, so Bush could argue that he can refuse without usurping that power.

What this all means, I think, is that sooner or later, impeachment will have to be back on the table. The separation of powers simply cannot tolerate a President's refusal to comply with Congress' power of oversight and investigation; and Congress must ultimately have the will to deal with a scofflaw President by impeaching him. Let Conyers announce right now that his investigations are related to the question of impeachment; or if he issues subpoenas and Bush refuses, then Conyers can say that Congress may have to impeach him for it, and subpoena him again. Or let the Judiciary Committee open a wide-ranging investigation into potentially impeachable offenses, including warrantless wiretapping (which in my view is the killer), FBI abuse of NSL's, extraordinary rendition, all of it. If the investigations are about impeachment, then thanks to the Nixon precedent, Bush will clearly be on perilous ground if he does not comply with them.

If Bush at some point gets a personality transplant and decides that he will co-operate with the other branches of government as the Constitution requires him to, then we might avoid the constitutional crisis. But let's be honest, we've been watching the petulant little man-child for six years and we know what he's going to do, especially after today. He's going to stamp his feet and refuse until the bitter end, and if Congress has the will (a very big if), they'll have to go all the way down the road of impeachment and removal to straighten him out. I don't see this playing out any other way.

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