Why History Is on Clinton's Side in the Impeachment Fight

Sept. 19 1998 3:30 AM

Why History Is on Clinton's Side in the Impeachment Fight

Neither the Johnson nor the Nixon precedent supports removing him from office.

After weeks of televised palaver, the legal division of the Flytrap commentariat has given up: In determining grounds for impeachment, the Constitution just isn't much help. Article II, Section 4 allows for the president's removal if the Senate convicts him of "treason, bribery, or other high crimes and misdemeanors." But how high is high? "Clearly, high crimes was referring to serious, serious crimes like treason and bribery, which are examples," said one legal pundit on PBS'NewsHour With Jim Lehrer. In other words, no one really knows.

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This leaves history as our only guide. Unfortunately for scholars (if fortunately for presidents), Congress has undertaken impeachment proceedings against only two chief executives, Andrew Johnson (1868, acquitted) and Richard Nixon (1974, resigned). That doesn't yield much in the way of precedent. Then again, the rarity of impeachment proceedings may itself be a sort of precedent. If so, President Clinton should relax--because, given what we know so far, he's on pretty firm ground.

The first and only presidential impeachment trial, Johnson's, has generally been viewed as a partisan vendetta by the Radical Republicans in Congress. The Radicals, who favored the abolition of slavery and supported black suffrage, despised Johnson for his timid plans for readmitting the South to the Union after the Civil War. Johnson, a Tennessee populist who thought blacks inferior to whites, wanted to give Southern states wide latitude in shaping their own laws and governments, regardless of the consequences for the freed slaves. He vetoed key pieces of Reconstruction legislation, including an 1866 bill that would have granted basic civil rights to blacks, and he opposed the 14th Amendment. Political warfare ensued.

Although the Republicans once drew the scorn of historians--they were seen as intemperate ideologues--since the 1960s, they've mostly been cast as the good guys in the Reconstruction fight. Changing attitudes toward race in the last generation have helped overhaul the old interpretation of Reconstruction as a bad idea gone wrong. Except, that is, on the impeachment episode. Here, even the acknowledged wisdom of the Republicans' Reconstruction plans hasn't changed the consensus that they acted from partisan motives.

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T he impeachment fight began when the Republicans, in their tug of war with Johnson, passed some dubious laws that shifted power from the president to Congress. One, the 1867 Tenure of Office Act, prohibited presidents from firing their own Cabinet members; another required that Johnson deliver all his military orders via Gen. Ulysses S. Grant. When Johnson removed his secretary of war, Edwin M. Stanton, on Feb. 21, 1868, the Radicals struck. They passed 11 articles of impeachment, nine relating to these two laws. Two other articles accused Johnson of ignoring or disgracing Congress.

The Senate trial focused on Stanton's removal, the most substantive charge. Johnson offered a somewhat contradictory defense. On the one hand, his lawyers said, Lincoln, not Johnson, had appointed Stanton, and so the Tenure of Office Act didn't apply; on the other hand, they claimed, Johnson had deliberately flouted the law to test it in the Supreme Court. Still, the case against Johnson was weak: It was hard to construe the act of a president firing his own subordinate as a "high crime." Johnson was in the last year of his term anyway, and when he passed word that he'd stop obstructing the Republicans' Reconstruction plans, his survival seemed assured. In the end, the Radicals voted to convict, while the Democrats and seven moderate Republicans voted to acquit. Impeachment fell one vote short of the required two-thirds of the Senate, though other Republicans would have supported Johnson if necessary.

In resting their case on an alleged violation of the law and not on policy differences, the Republicans conceded that impeachment had to amount to more than a parliamentary-style vote of no confidence. Before Johnson, this had been an open question; after him, it wasn't. Further, the Radicals' defeat suggested that successful impeachment charges against the president would have to allege substantial crimes on his part. Allegations of criminal wrongdoing that essentially served to cover for political differences wouldn't be likely to topple a president--even if they were technically accurate.

Johnson's survival, combined with the passage of 100 years, made impeachment, by the time of Watergate, seem like an altogether unlikely scenario--the equivalent, as historian Stanley Kutler has written, of a nuclear first strike. In retrospect, of course, Watergate has come to mean the vast tapestry of that began to unravel with the June 1972 break-in of the Democratic National Committee headquarters. But as late as the spring of 1973 the scope of these misdeeds--including critical details about Nixon's involvement--remained unclear. So improbable did impeachment seem that April that Nixon's Attorney General Richard Kleindienst defied Congress to try it, confident it would relent.

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A s Nixon's troubles worsened, however, his critics grew bold. After the July 1973 disclosure that Nixon had taped his Oval Office conversations, Democrat Robert Drinan of Massachusetts introduced the first impeachment resolution in the House. October brought the Saturday Night Massacre--in which Nixon had to fire his attorney general and deputy attorney general in order to get rid of Special Prosecutor Archibald Cox--and four more impeachment bills, including one introduced by a Republican. After months of new disclosures, including the release of transcripts of damning White House conversations, the House Judiciary Committee began impeachment deliberations in earnest on May 9, 1974. By July, nine fence-sitting members of Congress--two Southern Democrats and seven Republicans--were ready to endorse some form of impeachment articles.

The committee held its final deliberations from July 24 through July 30. July 27, it voted 27-11 to pass the first article of impeachment, which focused on "obstruction of justice": paying hush money to the Watergate burglars, using the CIA to block the FBI's Watergate investigation, lying to Congress and to investigators, and otherwise covering up crimes. Two days later, it passed a second, equally devastating, article by a 28-10 vote. This "abuse of power" article charged Nixon with having the Internal Revenue Service audit his enemies, spying on private citizens, setting up the "Plumbers" unit that broke into the Watergate office building and anti-war activist and Pentagon Papers author Daniel Ellsberg's psychiatrist's office, and otherwise using federal agencies for personal and political advantage. Finally, on July 30, the committee passed a third, slightly weaker, article 21-17, which charged the president with having willfully disobeyed subpoenas. Two other articles--urging Nixon's impeachment for concealing the bombing of Cambodia and for tax evasion--went down to defeat; moderate Democrats wanted to play only their strongest cards. That didn't matter much, though; Nixon, knowing he was licked, resigned 10 days later.

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