[I’ve been watching the news for the last week and trying not to write a blog about it. Goodness me! It has been hard! The Benghazi “cover-up” is back[1], the IRS was targeting conservatives[2], the Secretary of HHS is accused of soliciting contributions from people she will regulate[3], sex is a problem in the military[4], and the FBI wire-tapped the Associated Press![5] And it’s only May! What will we talk about when the dogs bark in August?]

Of course, there are opinions here at Elemental Zoo about what’s really going on – lots of them – but even the most dedicated agree that, right now, hard facts are elusive. Only ideologues and fools pretend to know the real stories. The rest of us wait for more information, i.e., for reports the Government’s investigators, our worthy legislators or the news media will develop over the next few months. As the old proverb goes, “Look before you leap.[6]

So we’re looking, not leaping. But some other media types are hopping around quite a bit – they’re developing a narrative to tie all the current stories together into one big ball of wax. And what might that narrative be? Why, Nixon, Watergate and Impeachment. And it’s not surprising that they think this way, either.

First, let’s have some context. Our Constitution provides “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”[7]So far as I know, that’s the only process we have. Impeach the President in the House of Representatives, and then convict him in the Senate of the offense(s) alleged by the House.

It’s not easy to remove a Chief Executive for “high Crimes and Misdemeanors;” in fact it’s never been done. Andrew Johnson, Lincoln’s successor, and Bill Clinton were impeached, but each beat his charges in the Senate trial.[8] What about Richard Nixon? Well, strictly speaking he wasn’t impeached; he heard it was coming and resigned before the House voted; so, of course, he also wasn’t tried in the Senate.[9] There was no indictment and no conviction.

Let’s get back to our original question.  Why do people today still talk about the Nixon Impeachment even though, technically, there wasn’t one? Well, and this is speculation, probably because that was the only time a President ever resigned on the spot because of a media frenzy. It was a unique event, and I’ll bet ambitious young reporters would love to repeat the experience, if possible. So they obsess over all possible scandals and buzz on about Watergate.

Don’t get excited. After all, it’s only my opinion. But if I’m right, I guess we have to look at the Nixon experience, draw what lessons we can and apply them today. The press won’t have it any other way. Of course, that would be a major project for an historian, probably involving a lifetime of research. But luckily Elemental Zoo is a blog, not a history project. So we’re going to take a shortcut, for the sake of the discussion.

What shortcut? Why not look at some original documents from that 40 year old battle? Why not examine the Articles of Impeachment that were prepared at the time, but ultimately not used against President Nixon? Arguably they provide a pretty good executive summary of the Congress’ grievances against him. And, they’re readily available, even today. [10]

There were three Articles. The central point in each of them was that the President swore to “preserve, protect and defend” the Constitution of the United States;[11] and under the Constitution must “take care that the laws be faithfully executed.[12]” But, for various reasons, President Nixon broke this oath and violated his duty to ‘faithfully execute” the laws. Or so it was said.

Article 1.

The first dealt with the campaign year of 1972, and illegal activities by Nixon’s Committee for the Re-election of the President (CRP). At one point CRP broke into DNC headquarters in Washington, D.C., looking for “political intelligence.”[13] President Nixon wasn’t charged with the break-in; nobody argued he set it up. But, according to Article 1, he did take an active role in concealing it and “other unlawful covert activities.”

Specifically, he did “one or more” of the following: made false or misleading statements to investigators; withheld relevant and material evidence; counseled witnesses to lie; interfered with DOJ investigations; authorized or approved “hush money” to witnesses; or “[made] or [caused] to be made false or misleading public statements for the purpose of deceiving the people of the United States.[14]

Article 2

There was more. In addition to blocking the Watergate investigation,[15] it was said, he misused the IRS to (i) obtain taxpayer information for political purposes, and (ii) conduct investigations and audits in a discriminatory manner.[16]

He also misused the FBI to conduct electronic surveillance ”for purposes unrelated to national security;”[17] maintained a “secret investigative unit” in the White House that was unauthorized by law; and used CIA assets to engage in “covert and unlawful” activities.[18]

Article 3

Finally, the President refused to comply with subpoenas issued by the House in its impeachment investigation. He 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 [numerous occasions] and willfully disobeyed such subpoenas.”[19]

In so doing he substituted his judgment for that 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.”[20]

What about Tomorrow?

So the three Articles, taken together, portrayed President Nixon as a very bad boy. Assume for a moment that, in 2016, Republicans take control of the Senate and keep their majority in the House. If control of the Congress flips to the Republicans, and Conservatives continue to strangle GOP management, might we see a Watergate II style offensive against Barrack Obama? Who knows?

OK, let’s get back to a question that’s more answerable. Suppose Conservatives get serious about trying to impeach President Obama. What lessons from the Nixon Impeachment proceedings still apply today? I can think of three.

  • Articles of Impeachment must originate in the House of Representatives. If the House wants to impeach Barrack Obama, it must first investigate. So, expect to see a blizzard of subpoenas from that quarter, asking for everything, relevant and irrelevant, having to do with Barrack Obama. Who knows, perhaps they might request all documents related to the President’s birth certificate. Anyway, expect the Administration to resist some of the subpoenas, and the House to take exception to any such resistance. Relying on Article 3, discussed above, the House will say that it has the “sole power” of impeachment, and will determine what’s relevant, and what isn’t. In this matter the President can’t substitute his judgment for that of the House. Or so the Speaker will say.
  • It’s not good to misuse the IRS. As Article 2 demonstrates, it was a very sensitive institution back in 1972, and that hasn’t changed. Everybody – and I mean reporters, investigators and citizens – will be looking at this story as it develops. And the principle question? Who in the White House knew about the goings-on at the IRS, and when did they know. Theoretically if a Chief Executive knows about illegal activity in his Administration, he should put a stop to it. That comes under the heading of taking care “that the laws be faithfully executed.”
  • It’s not the offense, it’s the “cover up” that can be the most dangerous. Most of the charges against President Nixon, at least with respect to Article 1, fell in the area of “obstruction of justice.” You know, lying, advising others to lie, concealing evidence, that sort of thing. What’s the best rule when the investigators are running around in your office, grabbing documents and asking questions? Hire your own lawyers, follow their advice, and don’t interfere.

Hopefully this is all just idle speculation. But as the saying goes, “If you don’t speculate, you can’t accumulate,”[21] or, in this case, defend yourself.

[1] See ABC News, Cass, A Look at Why the Benghazi Issue Keeps Coming Back (May 20, 2013) at http://abcnews.go.com/Politics/wireStory/benghazi-issue-coming-back-19214412

[2] See The Washington Post, O’Keefe, IRS  scandal focus of Senate Hearing (May 21, 2013) at http://www.washingtonpost.com/politics/irs-scandal-focus-of-senate-hearing/2013/05/21/ce4ccad4-c190-11e2-8bd8-2788030e6b44_story.html

[3] See Thomson Reuters, Newsmax, Republicans See New Scandal in Sebelius Fundraising (May 21, 2013) at http://www.newsmax.com/Newsfront/sebelius-obamacare-fundraising/2013/05/21/id/505508

[4] See The Californian, Editorial, Military sex crimes must end (May 2013) at http://www.thecalifornian.com/article/DN/20130521/OPINION01/305210020/Military-sex-crimes-must-end

[5] See Newton Daily News, Editorial, AP wiretapping is a serious overstep by government (May 17. 2013) at http://www.newtondailynews.com/2013/05/17/ap-wiretapping-is-a-serious-overstep-by-government/adlwx8l/

[6] See Oxford Dictionary of Quotations (6th edition) (Oxford, 2004) at Proverbs, p. 625, n. 39. It’s not a new idea. It’s from the 14th Century. Henceforth, the Dictionary will be cited as ODQ at __.

[7] See Transcript of Constitution of the United States (1787), Art. II, Sec. 4 at http://www.ourdocuments.gov/doc.php?doc=9&page=transcript You can download a copy from the Government Printing Office; just go to http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=CDOC-110hdoc50&packageId=CDOC-110hdoc50

[8] If you want to know more about impeachment in general, Wikipedia has an interesting discussion, although it is a work in progress. Just go to the Wikipedia website and search Impeachment in the United States, or simply click here: http://en.wikipedia.org/wiki/Impeachment_in_the_United_States

[9] If you want to know more about President Nixon, Wikipedia has a reasonably thorough article. To see it, click here: http://en.wikipedia.org/wiki/Richard_Nixon

[10] These are the Articles adopted by the House Judiciary Committee on July 27, 1974. They’re available at Watergate.info, http://watergate.info/impeachment/articles-of-impeachment  Henceforth, they’ll be cited as Articles of Impeachment, at Article __.)

[11] See Transcript of Constitution of the United States (1787), Art. II, Sec. 1: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” See note 7 for the online version.

[12] See Transcript of Constitution of the United States (1787), Art. II, Sec. 3. See note 7 for the online version.

[13] See Articles of Impeachment at Article I, intro. This is, of course, the famous Watergate break in. If you want to know more about that, see the Wikipedia entry entitled “Watergate scandal,” at http://en.wikipedia.org/wiki/Watergate_scandal

[14] See Articles of Impeachment at Article I, §§ 1 – 9.

[15] See Articles of Impeachment at Article II, §§ 4 & 5.

[16] See Articles of Impeachment at Article II, § 1.

[17] See Articles of Impeachment at Article II, § 2.

[18] See Articles of Impeachment at Article II, § 3.

[19] See Articles of Impeachment at Article III.

[20] See Articles of Impeachment at Article III.

[21] See ODQ at Proverbs, p. 623, n. 16.