Archives for posts with tag: Nixon

[This is G. Sallust, and today I’m only doing the introduction, so relax. There will be no long sermons from me. I see in the news that our current President is auditioning lawyers and law firms to see which of them will represent him in the multitudinous investigations now sprouting inside the Beltway. Really, we need a scorecard to keep track of things.

  • Our loose-lipped and always indignant Congress wants to know whether our President is “too close” to the Russians[1]; their evidence of that is that he’s been seen talking to their emissaries in the White House, and even the Oval Office[2]; that he’s said it would be nice to “get along’ with them, if possible[3]; and that prior to the last election the Russians, allegedly, gave documents to WikiLeaks that were authentic, but embarrassing to Democrats.[4] (The Russians deny they were the source of the documents, and WikiLeaks agrees.[5])
  • In the meantime the FBI is interviewing senior members of the Trump entourage, about Russia[6], and DOJ has nominated a Special Prosecutor to do pretty much the same thing.[7]

Given all that, how should the President handle the legal traffic? Is he right to hire outside counsel, or should he rely on internal resources? Of course, DOJ is an investigator in these matters, so they can’t [and shouldn’t] defend the President at the same time. But the President also has an official counsel in the White House, with a staff, so should he use them as his advisers, defense counsel and the rest?

I’ve asked Larry, our resident legal consultant, for his views on the matter. He wants me to say that he’s retired; he’s not advising anybody in the White House, or anywhere else on these matters, or anything related to them. Like any other pundit, he’s merely offering opinions, but unlike most of them he’s basing his views on decided cases and the written record. So with that in mind, let’s hear from Larry!]

Thanks, G. I don’t care what anybody says, it’s good to have you back. How did that romance of yours go? … Oh, strike that! Sorry I asked!

The main advantage of talking to a lawyer is, when the criminal allegations start to fly, you can discuss them frankly with an experienced person, clarify the issues, and decide what to do. These kinds of discussions need to be privileged, i.e., protected from disclosure, otherwise you can’t have them at all. At one time Presidents thought they could shield discussions about sensitive internal matters simply by claiming executive privilege, but they lost that option for criminal matters when Richard Nixon was President. So now Presidents [and other government employees] can talk only to lawyers when the gumshoes call, and not just any lawyer. One who works for the government may be no help at all.

Executive Privilege

The granddaddy of cases about executive privilege and the White House is, of course, United States v. Nixon.[8] There was a special prosecutor in those days, appointed to look into events surrounding an attempted burglary of the DNC Headquarters in Washington, D.C. Various Nixon apparatchiks were indicted in connection with that and, once it became known that the President routinely taped conversations with his staff, including apparatchiks, the relevant tapes were subpoenaed as part of the investigation.

President Nixon resisted the subpoena on the theory that his tapes were protected by “absolute” executive privilege.  This was true, he said, because (i) the doctrine of separation of powers, en-grained in our Constitution, called for it, and (ii) the President needs “complete candor and objectivity from his advisers,” which he would not get if their conversations might be exposed in some investigation.[9]

The Supreme Court rejected both claims. “[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”[10]

The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.[11]

In short, the internal communications of presidents may be subpoenaed in a criminal investigation. [Communications involving “military, diplomatic, or sensitive national security secrets” might be exempted, but it’s not clear from the decision how that would work, because those kinds of documents were not in play in the case]. Once made available the papers, etc. would be reviewed in the usual manner and with appropriate safeguards.[12]

Attorney Client Privilege

So if you are a President, and there is a criminal inquiry going on in your operation, who can you talk to? Better yet, who can you talk to in confidence? How about the White House Counsel or some other government lawyer? Well, of course you can talk to anybody you want to. The question is, when the subpoenas begin to fly, who can [or must] protect your conversations from the other side?

Lawyers and their clients have something called attorney-client privilege which should do the job. Basically in most states the lawyer’s duty to keep secrets is defined very broadly.[13] It applies to all information related to the representation of the client. The lawyer must be discreet with the information regardless of whether the client has revealed it to others. And in most states the same standard applies to government and private sector lawyers.[14]

The District of Columbia seems to be different, at least on that last point. I guess we all remember the lengthy investigation of the Clintons back in the 1980s. A “Special Prosecutor” was appointed to investigate some financial dealings Mr. Clinton had in Arkansas before he became President; collectively they were nicknamed “Whitewater;” [15] but eventually the investigation spread to all manner of things, including Mr. Clinton’s alleged sexual proclivities and stains on a junior staffer’s dress. White House Counsel staff were scheduled for interviews, but the Deputy there, Bruce Lindsey, asserted attorney-client privilege and refused to cooperate. His refusal was taken to court, first to the trial court supervising the investigation and later, to the Court of Appeals for the D.C. Circuit. That particular bit of litigation did not turn out well for the Clintons or for those of us who think that the attorney-client privilege is a good thing.

The case is In re: Bruce Lindsey [Grand Jury Testimony].[16] The basic facts were that a Grand Jury was investigating alleged wrongdoing in the Executive Branch. In that situation, the court said, government lawyers are very different from those in private practice. Members of the Executive Branch, including attorneys, must “take Care that the Laws be faithfully executed.” That’s a Constitutional duty.[17] When crimes are being investigated “and especially offenses committed by those in Government, government attorneys stand in a far different position from members of the private bar.” The government lawyer’s duty “is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure.”[18] A lawyer in private practice has exactly that duty. The loyalties “of a government lawyer cannot and must not lie solely with his or her client agency.”[19] The loyalties of the private practitioner lie solely with the client.

So given that I guess we can conclude (i) when crimes are being investigated at an agency, (ii) government attorneys can’t invoke attorney-client privilege to withhold pertinent information from the investigators. There’s no such privilege available in that situation. However, there are other reasons why information might be withheld. It might be highly classified technical data, and withhold-able on that basis alone; or core information related to military, diplomatic or national security matters, legitimately subject to executive privilege; or who knows what? The holding of the case is simply that government attorneys can’t use attorney-client privilege to do the job.

Conclusion

So what’s a President to do when the investigators come a calling. Who does he talk to and what does he say? Well, the court had some ideas on that. It said:

Moreover, nothing prevents government officials who seek completely confidential communications with attorneys from consulting personal counsel. The President [Mr. Clinton] has retained several private lawyers and he is entitled to engage in the completely confidential communications with those lawyers befitting an attorney and a client in a private relationship.[20]

So there you go. If our current President wants or needs all of the advantages of dealing with a private attorney, and can afford it, he should hire one or teams of them, if necessary.[21] What’s my opinion? In the current environment, it would be irrational for him not to do so.


[1] See, e.g., the screed published by the American Bridge PAC, whatever that is, at https://americanbridgepac.org/app/uploads/Too-Close-To-Russia.pdf Strictly speaking this isn’t a Congressional product but its emblematic of the kinds of things being said on the Hill.

[2] See The Washington Post, Rucker, et al., Inside the Oval Office with Trump and the Russians: Broad smiles and loose lips (May 16, 2017) at https://www.washingtonpost.com/politics/inside-the-oval-office-with-trump-and-the-russians-broad-smiles-and-loose-lips/2017/05/16/2e8b0d14-3a66-11e7-8854-21f359183e8c_story.html?utm_term=.b335e08c0e39

[3] See The New York Times, Burns, Donald Trump Reaffirms Support for Warmer Relations With Putin (Aug. 1, 2016), at https://www.nytimes.com/2016/08/02/us/politics/donald-trump-vladimir-putin-russia.html?_r=0

[4] See, e.g., The Observer, Schindler, Wikileaks [sic, WikiLeaks] Dismantling of DNC Is Clear Attack by Putin On Clinton (07/25/16)  at http://observer.com/2016/07/wikileaks-dismantling-of-dnc-is-clear-attack-by-putin-on-clinton/

[5] See CNN, McKirdy, WikiLeaks’ Assange: Russia didn’t give us emails (January 4, 2017) at http://www.cnn.com/2017/01/04/politics/assange-wikileaks-hannity-intv/index.html

[6] See CBS Los Angeles (video) Trump Son-In-Law under FBI Scrutiny (26 May 2017) at http://www.msn.com/en-us/foodanddrink/video/trump-son-in-law-under-fbi-scrutiny/vp-BBBxL3C

[7] Robert Mueller is the Special Prosecutor. He now has an official spokesperson.  See Politico, Gerstein, Trump-Russia special prosecutor Mueller taps spokesman, (May 26, 2017) at http://www.politico.com/story/2017/05/26/peter-carr-robert-mueller-spokesman-238860

[8] See United States v. Nixon, 418 U.S. 683 (1974).

[9] Id. at 706.

[10] Id.

[11] Id.

[12] At that time, it would have been under Rule 17 of the Federal Rules of Criminal Procedure. Note that the Court did not address the question of what rules might apply to civil proceedings involving one or more private parties. That wasn’t an issue in the case.

[13] This is a paraphrase of the findings of someone who’s actually done the research. See Clark, Government Lawyers and Confidentiality Norms, 85 Wash. Univ. L. Rev. 1033. 1035 (2008): “In most states, a lawyer’s duty of confidentiality is defined very broadly and applies to all information relating to the representation of the client. The lawyer is required to be discreet with such information whether or not it could harm or embarrass a client, and whether or not the client has revealed the information to others. In most states, the professional confidentiality rule does not distinguish between government and private sector lawyers.”

[14] See Leong, Note, Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys, 20 Geo. J. Legal Ethics 163 (2007), at http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1237&context=facpubs

[15] Rather than “Watergate.” We pundits really need our labels, don’t we?

[16] See In re: Bruce Lindsey [Grand Jury Testimony], 158 F.3d 1263 [D.C. Cir.], cert. denied, 525 U.S. 996 (1998). Here I need to apologize.  We have the correct citation for this case, but not the official report of the opinion. Also there doesn’t seem to be a way to get the official opinion without paying West Publishing or somebody like that for it. As you know, if possible we try to point our readers to free sources for the things we cite. So for the moment we’re going to rely on unofficial sources, i.e., the Washington Post for the original, redacted version, and the Justicia website for the later, more complete version. You can find the version published by the Post in 1998 at http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/ruling072798.htm . We’ll call it the WAPO version. Page citations will be to that version unless otherwise noted. We’ll make appropriate changes once we access the official version. You can find the more complete, un-redacted version maintained by Justia at http://law.justia.com/cases/federal/appellate-courts/F3/158/1263/544889/ . That one doesn’t have page numbers, so it’s more difficult to cite.

[17] Citing Article II, §3 of the Constitution. The President takes an oath to do that, and so does every federal employee. See Article II, §1, clause 8; Article VI, clause 8.

[18] See WAPO version at p. 9 of 24

[19] See WAPO version at p. 10 of 24

[20] See WAPO version at p. 14 of 24.

[21] The following paragraph falls at the end of the un-redacted version of the majority [per curiam] opinion published by Justicia. There are no page numbers in this version!! The paragraph quoted appears just before commencement of the dissent: “If the President wishes to discuss matters jointly between his private counsel and his official counsel , he must do so cognizant of the differing responsibilities of the two counsel and tailor his communications appropriately; undoubtedly his counsel are alert to this need as well. Although his personal counsel remain fully protected by the absolute attorney-client privilege, a Deputy White House Counsel … may not assert an absolute privilege in the face of a grand jury subpoena, but only the more limited protection of executive privilege. Consequently, although the President in his personal capacity has at least some areas of common interest with the Office of the Presidency, and although there may thus be reason for official and personal counsel to confer, the overarching duties of Lindsay in his role as a government attorney prevent him from withholding information about possible criminal misconduct from the grand jury.”

 

[This is Fred again. I was more or less shut out of the UFO project, so I decided to look for something else civilized folks don’t like to talk about and discuss that. That could have been any one of a lot of things, usually involving sex or death, and possibly the End Times. But last week I spotted a new book about bomb shelters that fits perfectly, and is interesting to boot, so I went with that. The book is Raven Rock;[1] my local book store got only two copies; I snapped up one of them; and have been reading it since. It’s well researched, has lots of footnotes [I like that sort of thing] and seems accurate. I lived through some of the events it describes and haven’t found any glaring errors.

Also it’s worth noting that our posture vis-a-vis North Korea and its weapons program has worsened quite a bit and people are beginning to notice. North Korea has built some of the smaller nuclear weapons – the  so-called atomic ones – and our media and foreign policy establishment seem totally afraid that North Korea might use a few of those to attack us or someone we like. Some, most notably the hackers known as “Anonymous,” have predicted a nuclear war in our future: no, strike that; in our near future[2]. See https://www.youtube.com/watch?v=GfOC2nz5Nmc&feature=youtu.be . I don’t agree; nor do I disagree with Anonymous.[3] Who knows what might happen? But the current furor makes revisiting the bomb shelter issue look a bit more intelligent than it did, say, last week.

G. Sallust has a story that pretty much explains who needs bomb shelters and who doesn’t. It seems that he worked in the Pentagon in the 1970s, and lived within walking distance of it. Each day he would leave work via the South Parking entrance, walk through the parking lot to a tunnel under the highway[4], go through the tunnel, then cross a road to his apartment building. So one day he was doing just that and was passed by a military guy doing the same thing. Being a friendly sort, G. decided to make small talk. “I read in the Post,” he said, ‘that Soviet missiles could reach us within 15 minutes of launch if we go to war. What would you do if you got word that was happening?”

“I’ve thought about it,” the guy said. “I’m not responsible for making launch decisions, so probably I would do what we’re doing now. I would have just enough time to leave the Pentagon, go to our apartment building, take the elevator to the 14th floor, go to the roof, crack open a beer, and watch the traffic jam. Then, boom!” The moral of the story was, you don’t have post-apocalypse worries if you live or work on Ground Zero. The Pentagon certainly was that.

The same was true for me back in the 1960s, when I lived outside an air base that hosted SAC B-52s[5] kept ready to respond if Soviet missiles came our way. The bombers were “locked and loaded,” you might say, and so were the crews; both were ready to take off in less than 15 minutes if the need arose. That made the air field a prime target for our enemies; in time of war they would try to strike before the planes took off. Whether the planes escaped or not, bystanders didn’t need to make long-term survival plans. The whole area would go boom when the missiles arrived!]

So bomb shelters aren’t really for the people at Ground Zero. Modern thermonuclear weapons [bombs or warheads] most likely will destroy anything in the blast zone that humans have built. Shelters are for the people who aren’t immediately incinerated; they’re for survivors who need to be fed, watered and protected from radiation. You put them far away from the blast zones and hope survivors get there before they die of the aftereffects of the attack. What aftereffects? Well, radiation poisoning, dehydration, starvation, epidemics, violence, that kind of thing.

We do have bomb shelters for that, but mostly to protect the Government, and its ability to fight a war; and to plan for reconstruction; not to shield civilian bystanders. The public are expected to flee the various Ground Zeros that will dot our landscape, and forage for food and take shelter on their own. No doubt there’s a Government plan to help with that – usually labeled “Civil Defense”- but I haven’t heard much about it in recent decades. I’ll bet you haven’t, either. Post war everything will be magically reconstructed through the miracle of capitalism. Details to follow.

Global Nuclear War

These kinds of things were openly discussed back in the day, and sometimes intelligently, but you don’t hear much about nuclear war in today’s media. Instead you hear babble and chatter about our “national interest” in this sea lane or that mountain top, or in righting wrongs in one place or another, or spreading democracy here and there, or in fighting terrorism or making the world safe for our way of life. Our leadership in the 1950s didn’t think that way. They were much more practical, and knew stupidity could have consequences. “Global war as defense of freedom [is] almost [a] contradiction in terms.[6]Who said that? Our President, Dwight Eisenhower, a seasoned warrior from World War II who held five stars and commanded the European Theatre of that war.[7] His Vice President, Richard Nixon[8], also had served, and so had a large part of the American population.

So what? You might ask. Nobody wants a “global” nuclear war. Let’s just have a limited one. We’ll just use a few nukes here and there, and promise not to do more; the other side will fold; and we’ll win. What’s wrong with that? Winning is good.

It’s unrealistic.  Suppose we launch one or two nuclear missiles at Russia to punish its government for something it did, or we thought it did, in the Middle East. Then we promise that we won’t throw any more at them. Why should they believe us? We already did a sneak attack. What’s to stop us from doing another? Also, the Russian military would be livid. If they were caught napping by us, they won’t want to repeat the experience. It would be better, they would argue, to strike first, in strength, to maximize Russia’s chance of surviving a war. Otherwise Russian armed forces would be merely targets for the Americans.

So how do I know that’s the way they would think? Because it’s the way we would.[9] President Eisenhower, for one, understood that “… the only way to mitigate losses [in a nuclear war] would be to strike first in a surprise attack ordered on the sole authority of the president himself ….”[10] If he did otherwise, he said, the Congress should have him shot for dereliction of duty.

Shelters

Raven Rock isn’t about bomb shelters for the masses, so probably we should reserve that topic for a later post. The book discusses four principal ones, two of which are well known today, and two that are relatively obscure. All are [or were] intended to help preserve the “continuity of government”[11] in the event of a big war. In Government-speak that’s also known as “COG.” The facilities are:

  • A very large fallout shelter built into the Greenbrier Hotel, a resort complex in West Virginia, to shield our Congress in the event of war.
  • The Cheyenne Mountain communications center, maintained by the North American Aerospace Defense Command [NORAD] near Colorado Springs, CO.
  • Raven Rock, an alternate DoD command post and communications center maintained in Pennsylvania in case the Pentagon is destroyed. Actually the military identified a need for an alternate Pentagon just six years after the original opened for business.[12] They selected Raven Rock and have been digging there and improving the site ever since.[13]
  • Mount Weather, a similar facility maintained for the civilian agencies.[14]

There was a time when each of these was a big secret. Since they were alternate command and control centers for use in time of war, or as a refuge for key members of our Government, or both, no one wanted them targeted for nuclear weapons. While three of them were truly “hardened” sites, possibly able to withstand a nuclear attack, why test that if you can keep the site a secret? The enemy can’t nuke what it doesn’t know about. However, none of the big 4 is secret anymore. Today they all have very informative Wikipedia entries.[15] So if the Government wants to have secret places to hide again, it will have to build new ones. Perhaps it has. Stay tuned.

Reconstruction

President Eisenhower was not an optimist about nuclear war, and how it might turn out for us. He thought, for example, that every country that entered such a war would emerge as a dictatorship. Democracies could not survive the stress of all that death and destruction.[16] Also the survivors might be set back quite a bit in their technology. If World War 3 is nuclear, the one after that might be fought with bows and arrows.[17]

Nevertheless, he didn’t give up on the notion that we might rebuild something after a nuclear war and, to that end, made arrangements to appoint key people, leaders of industry, to guide the effort. These individuals, also known as his “shadow government,” were specially appointed by him to take charge if disaster struck, and do what was necessary. Perhaps the legality of all that was questionable, but the idea was that if everything was falling apart, the survivors would go along.[18]

The idea began with the Eisenhower Administration, but didn’t end there. The Reagan people, for example, devised a complex plan to deal with a hypothetical “decapitation attack,” i.e. a successful attack mounted by our adversaries to eliminate most or all of our leadership. It also included a list of civilians who could be drafted to take over in case of need.[19]

My guess is that those are not the only administrations to have had that idea. It’s a natural if one is planning for catastrophe. So don’t be surprised if there are more revelations.

Conclusion

So that’s enough for now about bomb shelters and disaster plans.  I don’t put a lot of confidence in shelters largely because, if they’re hardened, most likely they’ll be obvious from the air, something like a castle in the middle of nowhere, with roads running to it and no reason to exist. I’ll just bet that we spend a lot of satellite time looking for that kind of thing in Russia; and they do the same with us. And both sides, if they find something interesting, add it to a target list, along with a note as to what size nuclear device might be needed to crack it. Aerial and/or space surveillance can be very effective. Just ask ISIS about the MOAB.

Of course if you live out in the country and a good distance from a potential Ground Zero, and worry about nuclear war, you might want to consider some sort of fallout shelter, perhaps like the ones people use to shelter from tornados. But be sure to cover it with at least 3 feet of earth. And, of course, if you live near any kind of military installation, you might want to forget the whole thing. You’re probably in a Ground Zero of some sort. Blast is your problem, not radiation.

 

[1] See Graff, Raven Rock, The Story of the U.S. Government’s Secret Plan to Save Itself While the Rest of Us Die (Simon & Schuster, 2017).  Hereafter the book will be cited as Raven Rock at __.

[2] See also New York Post, Perez, Anonymous warns world to ‘prepare’ for World War 3 (May 8, 2017), available at http://nypost.com/2017/05/08/anonymous-warns-world-to-prepare-for-world-war-3/  

[3] If I did, no doubt they wouldn’t forget. Who would want Anonymous for an enemy?

[4] Today it’s called I-395. Before that, it was “Shirley Highway.”

[5] For those of you who must know, it was Robins AFB in Georgia. It’s still there, but apparently the nuclear weapons aren’t. See the Wikipedia entry on Robins AFB at https://en.wikipedia.org/wiki/Robins_Air_Force_Base

[6] This is from President Eisenhower. See Raven Rock at p. 46.

[7] Wikipedia has a pretty good Eisenhower biography at https://en.wikipedia.org/wiki/Dwight_D._Eisenhower .

[8] Wikipedia’s Nixon biography is at https://en.wikipedia.org/wiki/Richard_Nixon .

[9] See Raven Rock at p. 67. “Wars and military endeavors were unpredictable, irrational and difficult to control once started; they escalated in unintended ways and, and military commanders would never admit defeat if they still had weapons to deploy. Eisenhower was certain any war with the Soviet Union would become a nuclear war, and that any nuclear war would escalate into a full, all-out general nuclear exchange. That end, catastrophic for the planet, was just too awful to contemplate. … ‘You might as well shoot everyone you see and then shoot yourself.’”

[10] See Raven Rock at p. 68.

[11] See Raven Rock at p. 49.

[12] See Raven Rock at p. 50.

[13] See Raven Rock at p. 49 – 54.

[14] See Raven Rock at p. 61-62, 130-32, 185 –188, 228 – 231.

[15] See Raven Rock at https://en.wikipedia.org/wiki/Raven_Rock_Mountain_Complex ; Mount Weather, at https://en.wikipedia.org/wiki/Mount_Weather_Emergency_Operations_Center ; Cheyenne Mountain Complex, at https://en.wikipedia.org/wiki/Cheyenne_Mountain_Complex ; and The Greenbrier Bunker photos at http://www.bing.com/search?q=the+greenbrier+bunker+photos&FORM=QSRE7 .

[16] See Raven Rock at p. 57. “The President said that, of course, his imagination as to the horrors of a third world war might be overdeveloped, but he believed that every single nation, including the United States, which entered into [a nuclear] war as a free nation would come out of it as a dictatorship … That will be the price of survival.”

[17] See Raven Rock at p. 77: “The destruction,” Eisenhower told his cabinet at one point “might be such that we might ultimately have to go back to bows & arrows.”

[18] See Raven Rock at p. 92 – 97.

[19] See Raven Rock at Chapter 16, Nine Naught Eight, p.297 – 337

 

[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.