When Richard Nixon announced his resignation, 40 years ago today, it was for one reason: Members of Congress had informed him the night before that he would be impeached by the House of Representatives, convicted by the Senate and removed from office.
In retrospect, one of the most striking features of the Watergate controversy is the continuity between a pivotal decision of the founding generation and the judgment of congressional leaders more than 180 years later. In 1974, the nation’s representatives focused on precisely the kinds of wrongdoing that prompted the founders to authorize impeachment in the first place.
Under the Constitution, the House of Representatives can impeach the president only for “Treason, Bribery, or other high Crimes and Misdemeanors.” But an initial draft of the text, found in the official journal of the Constitutional Convention, was written in broader terms, allowing the president to be impeached for "malpractice, or neglect of duty" as well.
On July 20, 1787, this draft provoked a pivotal debate. One extreme position, with little support among the delegates, was that the legislature should have the power to remove the executive at its pleasure. The opposing position was that in the new republic, the president ought not to be impeachable at all.
The latter position received considerable support, and it played a large role in the day's debate. It was defended partly on the grounds that the power of impeachment would compromise the separation of powers, and partly on the grounds that the president would be subject to periodic elections, which would make impeachment less necessary.
The third position was that the president should be impeachable, but only for a narrow category of abuses -- for example, procuring office by unlawful means or using his authority for treasonous ends.
James Madison expressed concern about cases in which a president "might betray his trust to foreign powers." George Mason argued that impeachment should be available to counter the risk that a president might obtain his office by corrupting his electors. Gouverneur Morris was convinced of the necessity of impeachment, because the president "may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard it by displacing him."
The convention thus moved toward a compromise, but it ended without agreement on any particular set of terms.
The new draft of the Constitution's impeachment clause emerged two weeks later, on Aug. 6. It would have permitted the president to be impeached, but only for treason, bribery and corruption. In early September, the delegates took up the question anew. Here they slightly broadened the grounds for removing the president, but in a way that stayed close to the compromise position that carried the day in July.
The opening argument was offered by Mason, who complained that the provision was too narrow to capture his earlier concerns and that "maladministration" should be added, so as to include attempts to "subvert the Constitution" that would not count as treason or bribery. But Madison responded that the term "maladministration" was so "vague" as to be "equivalent to a tenure during pleasure of the Senate" -- something the Framers had been trying to avoid all along. Hence Mason withdrew "maladministration" and added the new, narrower and more precise "other high Crimes and Misdemeanors" against the nation. With minor changes, the impeachment clause was finalized.
With respect to Nixon, the first article of impeachment was based on the Watergate break-in itself -- in particular, Nixon’s unlawful effort to obtain political intelligence from surveillance of the Democratic National Committee. The second article was based on Nixon’s unlawful use of the Federal Bureau of Investigation, the Central Intelligence Agency and the Internal Revenue Service for political purposes “unrelated to national security, the enforcement of laws, or any other lawful function of his office.” Both of these articles were tightly connected to the founders’ concerns about corruption -- in particular, presidential efforts to gain or keep the office by unlawful means.
In recent decades, prominent people inside and outside Washington have called for impeaching both Republican and Democratic presidents for reasons that fall far short of these grounds. In the case of Bill Clinton, they succeeded. As we remember the painful events of 1974, it's worth honoring the seriousness of the lawmakers’ efforts -- and their impressive fidelity to the Constitution.
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Cass R Sunstein at firstname.lastname@example.org
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Mary Duenwald at email@example.com