A document from the CQ Researcher archives: Report Outline
Moves Towards Impeachment of Nixon
Impeachment as Curb on Executive Power
Presidential Removal and Succession
Special Focus Moves Towards Impeachment of Nixon Watergates as Catalyst for Action Against Nixon Talk of impeachment is in the air. Not since the impeachment trial of President Andrew Johnson in 1868 has there been so much demand that Article II, Section 4, of the Constitution be invoked against a President of the United States. It stipulates that the “President, Vice President and all other civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery and other high crimes and misdemeanors.” Public sentiment for President Nixon's removal grew after his firing of Watergate Special Prosecutor Archibald Cox on Oct. 23—though public opinion polls indicated impeachment lacked majority support. Since then, 25 resolutions dealing with impeachment have been introduced in Congress, bringing the total to 30 since the 93rd Congress convened on Jan. 3, 1973. Members of both parties reported that mail from constituents was running heavily in favor of the President's removal. Responding to this outpouring, the House Judiciary Committee began investigating whether there were grounds for impeachment. And a number of newspapers, student organizations, business and labor leaders, and politicians, some of whom once were friendly to Nixon, have called for his removal or resignation. When the President agreed to turn over tape recordings that had been requested by the former special prosecutor to Judge John J. Sirica on Oct. 23, it was thought that the pressure for impeachment would subside. But the disclosures that key tapes were missing or inaudible, and the confusing, often contradictory, explanations offered by the White House have, if anything, seemed to fuel the drive.However, illegal or unethical Watergate-related activities were only the catalyst in the impeach-Nixon drive, the American Civil Liberties Union reported.In a resolution the ACLU adopted Sept. 20,it called for Nixon's impeachment on grounds “affecting civil liberties”. The AFL-CIO requested Nixon's resignation or, failing that, his impeachment. Delegates unanimously approved this resolution at the labor organization's 1973 convention at Bal Harbour, Fla., on Oct. 22. On Nov. 10, after Nixon said he would not resign, the AFL-CIO drew up a list of 19 “impeachable offenses” and asked the unions' 13.5 million members to urge their congressmen to support attempts to remove the President. In the meanwhile, the Public Citizen newsletter of Ralph Nader's consumer organizations added its voice to the calls for Nixon's impeachment. And on Nov. 24, four Washington lawyers for the public-interest firm of William A. Dobrovir released a study listing 28 “common crimes” for which they said the President and his associates could be indicted. These included conspiracy, illegal wiretapping, burglary, obstruction of justice, conspiracy to defraud the United States, bribery, fraud, embezzlement and tax evasion. Administration spokesmen, including Nixon, typically contend that he was unaware of what his aides were doing and would never have approved of their over-zealous activities if he had known; that surveillance of radicals and others was undertaken to protect national security; and that military actions in Cambodia were legitimate and constitutional functions of the commander in chief. Can a President be impeached for the conduct of his aides when he did not know, or when there is no proof that he knew, what they were doing? James Madison, one of the authors of the Constitution, thought so. “I think it is absolutely necessary,” he wrote, “that the President should have the power of removing [his assistants] from office; it will make him, in a peculiar manner, responsible for their conduct and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes and misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.” Uncertainty Over Possible Grounds for Removal Article II, Section 4, of the Constitution has given rise to questions about who is impeachable and for what offenses. The President and Vice President are specifically mentioned, but to whom does “all other civil officers” refer? In its first impeachment trial, that of Sen. William Blount (Tenn.) in 1798–99, the Senate dismissed the charges against him on the ground that it had no jurisdiction because Blount was not a civil officer. He was expelled from the Senate, however. The Supreme Court, in United States v. Mouat (1888), declared: “Unless a person in the service of the government holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of departments authorized by law to make such appointment, he is not, strictly speaking, an officer of the United States.” All states except Oregon provide for the impeachment of public officials, but impeachment at the state or local level is rarely ever used. The most baffling aspect of impeachment is the question of what constitutes grounds for removal. Treason and bribery are reasonably well-defined; “other high crimes and misdemeanors” are not. An endless debate has surrounded the phrase, pitting broad constructionists, who view impeachment as a political weapon, against narrow constructionists, who regard it as being limited to offenses indictable at common law. The constitutional debates seemed to indicate that impeachment was to be regarded as a political weapon. Narrow constructionists quickly won a major victory, however, when Supreme Court Justice Samuel Chase was acquitted in 1804. Chase's defense was that he had committed no indictable offense. The only two impeachment convictions by the U.S. Senate in the 20th century suggest that broad constructionists still have powerful arguments. Those convictions removed Robert W. Archbald, associate justice of the U.S. Commerce Court,in 1913 and Halsted L. Ritter, federal judge for the Southern District of Florida, in 1936. Archibald was convicted of soliciting for himself and friends valuable favors from railroad companies, some of which were litigants in his court. It was conceded, however, that he had committed no indictable offense. Ritter was convicted for conduct in a receivership case which raised serious doubts about his integrity. Raoul Berger, author of the much-praised Impeachment: The Constitutional Problem(1973), believes that the grounds for removal lie somewhere between Sir William Blackstone's assertion in 1796 that an impeachment “is a prosecution of the already known and established law” and Rep. Gerald R. Ford's statement in 1970 that “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history. Ford, the House Republican leader who has since become President Nixon's choice for Vice President, was in 1970 pressing for the impeachment of Supreme Court Justice William 0. Douglas. Historian Arthur M. Schlesinger Jr. contends in his book The Imperial Presidency that President Nixon could be charged with both constitutional and criminal offenses. “The constitutional offense that led to the impeachment of Andrew Johnson was trivial compared to the charges now accumulating around the Nixon administration. There are, indeed, constitutional offenses here too—the abuse of impoundment and executive privilege, for example; or the secret air war against Cambodia in 1969–70, unauthorized by and unknown to Congress; or the prosecution of the war in Vietnam after the repeal of the Gulf of Tonkin Resolution;or the air war against Cambodia after the withdrawal of American troops from Vietnam. But these, like Andrew Johnson's defiance of the Tenure of Office Act, were questions that a President might contend—until the Supreme Court decided otherwise—lay within a range of executive discretion.” What was unique in the history of the presidency, Schlesinger continued, “was the long list of potential criminal [Schlesinger's emphasis] charges against the Nixon administration. Even before the various investigations were concluded, it seemed probable that Nixon's appointees had engaged in a multitude of indictable activities: at the very least in burglary; in forgery; in illegal wiretapping; in illegal electronic surveillance; in perjury; in subornation of perjury; in obstruction of justice; in destruction of evidence; in tampering with witnesses; in misprison of felony; in bribery; in acceptance of bribes; in conspiracy to involve government agencies in illegal activities.” Constitutional Provisions for Ousting Officials Impeachment is probably the most awesome and least used power of Congress. In essence it is a political action, couched in legal terminology, directed against a ranking official of the government. The House of Representatives is the prosecutor. The Senate chamber is the courtroom and the Senate is the jury. For those found guilty of treason, bribery or other high crimes and misdemeanors, the final penalty is removal from office and disqualification from further office. There is no appeal. To date, there have been about 65 inquiries into impeachment. The House has voted to impeach 12 officials. Eleven have been tried by the Senate, resulting in four convictions, all involving federal judges. Judge George W. English, the 12th official, resigned and was never tried. Impeachment proceedings have been initiated by the introduction of a resolution by a member of the House, a letter or message from the President, a charge forwarded to the House from a state or territorial legislature or grand jury, or a resolution reported by the Judiciary Committee or other House committee. Even “common fame”—facts made public by the news media or other sources—have led the House to undertake impeachment investigations. The cases that have reached the Senate in this century were based on resolutions by the Judiciary Committee. If the impeachment charges are supported, the committee approves a resolution which generally includes articles of impeachment. This resolution is subject to adoption by a majority vote of the House. If that body adopts the resolution, the House selects managers to direct the proceedings in the Senate. Managers have been chosen in three different ways: (1) by a resolution fixing the number and authorizing the Speaker to appoint them; (2) by a resolution fixing the number and making the appointments; and (3) by ballot, with a majority vote for each candidate. Once selected, the House managers appear at the bar of the Senate to present the articles of impeachment. Following Senate rules adopted March 2, 1868, after the impeachment of President Andrew Johnson, the trial follows many of the procedures of a court trial for criminal offenses. Both sides may present witnesses and evidence, and the defendant is allowed counsel and the right to cross examine. If the President is on trial, the Constitution requires the Chief Justice of the Supreme Court to preside. For lesser officials, Senate practice has been for the Vice President or the president pro tempore of the Senate to preside. During the trial, the accused may appear personally or be represented by counsel. Procedural questions are decided by the presiding officer but can be overruled by a majority vote of the senators present. Conviction requires the approval of two-thirds of the Senate; a vote on a single article of impeachment is sufficient to convict. The Constitution limits the penalties for those found guilty to removal from office and disqualification from holding “any Office of Honor, Trust or Profit under the United States.” The House procedure on impeachment has been compared to the work of a grand jury and Senate consideration of the charges to the trial following a grand jury indictment. Thus, during an impeachment, the House becomes “the grand inquest of the nation”; the Senate is known as “the high court of impeachment.” Despite the terminology, impeachment proceedings are not criminal proceedings. However, officials convicted on impeachment may later be tried in court for criminal offenses. The recent grand jury investigation of Vice President Spiro T. Agnew raised the question as to whether a high official, specifically the President or Vice President, could be indicted before being impeached. Agnew's lawyers argued that impeachment must precede indictment. However, the Justice Department argued in court that only the President was immune from outside criminal proceedings before an impeachment conviction was handed down. In 1846, James K. Polk defended his right as President to spend money for foreign intelligence operations during the Mexican War without making the information available to Congress. Polk challenged criticism in Congress by maintaining that if members believed him guilty of misconduct and that if the House wished to institute impeachment proceedings, “it could command the attendance of any and every agent of Government and compel them to produce all papers, public or private, official or unofficial, and to testify on oath to all facts within their knowledge.” Folk's contention may become an issue again if impeachment proceedings against President Nixon continue. Partisan Aspects of Most Impeachment Attempts Impeachment is, by nature, a political process. As such, it is open to the charge of being overly partisan. Gaddis Smith, professor of American history at Yale, notes that the proceedings to date “viewed as a whole, present a shabby picture of political prejudice, disregard for the probable meaning of the Constitution and a negligent attitude toward due process.…The result is that a proper and essential part of the constitutional system lies in ill repute.”Warning against politicalization of the impeachment process, Alexander Hamilton wrote in The Federalist (No. 65): “A well-constituted court for the trial of impeachment is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction…are of a nature which may with peculiar propriety be denominated POLITICAL [Hamilton's emphasis]…” Partisanship has been apparent in virtually all impeachment proceedings. Describing the trial of Andrew Johnson, John F. Kennedy wrote in Profiles in Courage (1956):“Prejudgment on the part of most senators…was brazenly announced.” The attempted removal of Justice Douglas was an extreme example of partisanship, Milton Viorst wrote in The New York Times Magazine on June 14, 1970. “The 110 sponsors are all conservative Republicans and Dixiecrats. This seems persuasive evidence in support of the hypothesis which virtually everyone in Washington accepts; that the undertaking seeks not simply to impeach William Orville Douglas but to discredit the liberalism inherent in the domestic programs of the Democratic administrations since the New Deal.” When House Speaker Carl Albert (D Okla.) decided to refer all resolutions dealing with the possible impeachment of President Nixon to the Judiciary Committee on Oct. 23, 1973, he was assigning the task to what was regarded as one of the least partisan committees in Congress. This image was soon shattered. At the committee's first meeting on Oct. 30, the 21 Democrats and 17 Republicans voted along strict party lines on three separate ballots to give Chairman Peter W. Rodino (D N.J.) the subpoena powers he wanted. A suggestion for mitigating the partisanship in impeachment proceedings is that a court of law try the accused or hear appeals after conviction. This suggestion was first raised, and rejected, in the constitutional convention of 1787. Nevertheless, the Supreme Court in 1969 reversed a decision by the House of Representatives to expel Rep. Adam Clayton Powell (D N.Y.). Raoul Berger believes that this ruling “calls for reconsideration of the scope of the Senate's ‘sole’ right to try impeachments.” Go to top Impeachment as Curb on Executive Power British Procedure for Removing King's Ministers Impeachment as a constitutional process dates from 14th century England when the fledgling Parliament sought to make the king's advisers accountable. The monarch, who was considered incapable of wrongdoing, was immune. Impeachment was used against ministers and judges whom the legislature believed guilty of breaking the law or carrying out the unpopular orders of the king. The system was based on the common law, and the House of Lords could inflict the death penalty on those it found guilty. Grounds for impeachment included both criminal and non-criminal activity. Joseph Story, in his Commentaries on the Constitution of the United States (1905), wrote: “Lord chancellors and judges and other magistrates have not only been impeached for bribery and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions and for attempts to subvert the fundamental laws and introduce arbitrary power.” So when a lord chancellor [Story added] has been thought to have put the great seal to an ignominious treaty; a lord admiral to have neglected the safeguard of the seas; an ambassador to have betrayed his trust; a privy councillor to have propounded or supported pernicious or dishonorable measures; or as confidential adviser to his sovereign to have obtained exorbitant grants or incompatible employments; these have all been deemed impeach-able offenses. In the mid-15th century, after the conviction of the Duke of Suffolk, impeachment fell into disuse. This was in large measure due to the ability of the Tudor monarchs to force Parliament to remove unwanted officials by bills of attainder or pains and penalties.In the early 17th century, the excesses and absolutist tendencies of the Stuart kings prompted Parliament to revive its impeachment power to curb the monarch by removing his favorite aides. The struggle between the king and the House of Commons came to a head with the impeachment of the Earl of Strafford, minister to Charles I, in 1642. The Earl was impeached for subverting the fundamental law and introducing an arbitrary and tyrannical government. Berger contends that “his impeachment may be regarded as the opening gun in the struggle whereby the Long Parliament prevented the English monarchy from hardening into an absolutism of the type then becoming general in Europe.” More than 50 impeachments were brought to the House of Lords for trial between 1620 and 1787, when the American Constitution was written. As the framers toiled in Philadelphia, the long impeachment trial of Warren Hastings was in progress in London. Hastings was charged with oppression, cruelty, bribery and fraud as colonial administrator and first governor general in India. His trial before the House of Lords lasted from Feb. 13, 1788, to April 23, 1795. Hastings was acquitted, but by that time, impeachment was widely regarded as unnecessary—because of ministerial responsibility to Parliament—and overly cumbersome. The last impeachment trial in Britain occurred in 1806. Early U.S. Concern About Unchecked President At the Constitutional Convention, delegates were primarily concerned with limiting executive power, lest the American President become a monarch. Edward S. Corwin pointed out in The President, Office and Powers (1957) that most of the delegates believed that “the executive magistracy was the natural enemy, the legislative assembly the natural friend of liberty.”Despite general agreement on the need for an impeachment provision, a major controversy arose over whether the Senate should try the cases. James Madison and Charles Pinckney asserted that it would make the President too dependent on the legislative branch. Suggested alternatives included the “national judiciary,” or the Supreme Court or the assembled chief justices of the state supreme courts. It was argued, however, that such bodies would be too small and might be susceptible to corruption. In the end, the Senate was chosen. Another issue was the definition of impeachable crimes. In the original proposals, the President was to be removed on impeachment and conviction for “mal or corrupt conduct” or “malpractice or neglect of duty.” Later, the wording was changed to “treason, bribery or corruption” and then reduced to “treason and bribery.” Contending that this phrasing was too narrow, George Mason proposed adding “mal-administration,” but switched to “other high crimes and misdemeanors” when Madison said that “mal-administration” was too broad. The constitutional provisions for impeachment, though based on both the language and theory of British practice, differed in several key respects from the English procedure. First, the President, unlike the king, was subject to impeachment. Second, conviction in the United States resulted only in removal from office, not in criminal punishment. Third, in Britain any person could be impeached; in America only “civil officers” were specified. Finally, the Constitution forbade the granting of a pardon to any convicted officials. The first impeachment attempt was made in 1796. A petition from residents of the Northwest Territory, submitted to the House on April 25, accused Judge George Turner of the territorial supreme court of arbitrary conduct. The petition was referred briefly to a special House committee and then to Attorney General Charles Lee. Impeachment proceedings were dropped after Lee said that the territorial government would prosecute Turner in the territorial courts. Political Passions in Major 19Th Century Cases During the first decade of the 19th century, President Jefferson and his followers turned to impeachment as a means of removing partisan Federalist judges. Gaddis Smith records that “the first conviction was against a senile federal judge in New Hampshire, John Pickering.” The judge was charged with drunkenness, blasphemy and rendering improper decisions. “Drunkenness and blasphemy were scarcely ‘high crimes and misdemeanors’ and the improper decision ought to have been appealed to a higher court.…But Pickering was an unpopular Federalist, and the Jeffersonian majority in the House and Senate were looking for victims.” Smith continued: Congress was after bigger game than old Pickering. In 1805, Associate Justice Samuel Chase, an able jurist but an outspoken Federalist, was impeached for intemperate, arbitrary and unjudicial conduct in trials involving violations of the Sedition Act of 1798. If Chase could be brought down, Chief Justice John Marshall was in all probability next on the list. Fortunately for the principles of separation of powers and the independence of the judiciary, Chase was acquitted. It is hardly surprising that the proceedings against the only President yet impeached should be riddled with partisanship. The impeachment and trial of President Andrew Johnson in 1868 were based on the charge that he had violated the Tenure of Office Act. Arthur M. Schlesinger Jr., among other historians, views this as only a pretext. “The essential congressional purpose was political: it was to bring to an end Johnson's systematic sabotage of Reconstruction,” Schlesinger said. Johnson was an anomaly as President. Lincoln's running mate in 1864, he was a southerner at a time when the South was out of the union; a Jacksonian Democrat who believed in states' rights, hard money and minimal federal government activity in an administration pursuing a policy of expansion both in the money supply and the role of government; a man who had little regard for the Negro at a time when the most powerful men in the country were actively seeking to guarantee the rights of the newly freed slaves. In these contradictions lay the basis for an inevitable conflict. On Lincoln's death, this outsider without allies or connections in the Republican Party succeeded to the presidency. Johnson's ideas on what should be done to reconstruct and readmit the South to the Union clashed with the wishes of a majority of Congress, overwhelmingly controlled by the Republicans. Congress was divided into three groups. The small minority of Democrats supported the President. About half of the Republicans were known as “radicals” because they favored strong action to revolutionize southern society, by harsh military means if necessary. The other half were more conservative; they were unwilling to go as far as the radicals but wanted to make sure the South did not return to the unquestioned control of those who had ruled it before the Civil War. The conservative Republicans were repeatedly thrown into coalition with the radicals, often against their wishes, by Johnson's political clumsiness. On March 2, 1867, the radical-conservative coalition succeeded in passing the Tenure of Office Act over Johnson's veto. The act stated that civil officers appointed with the Senate's consent could not be removed without its approval. The purpose was to protect Republican officeholders from retaliation if they did not support the President. The President had long wanted to rid himself of Secretary of War Edwin M. Stanton, a close ally of the radical Republicans. Unable to persuade him to resign, Johnson suspended him on Dec. 12, 1867. A month later, the Senate refused to concur in the suspension and Stanton was reinstated. The following Feb. 21, Johnson, citing the power and authority vested in him by the Constitution, dismissed Stanton. In effect, he was declaring the Tenure of Office Act unconstitutional and refusing to abide by it. This action enraged Congress, driving conservative Republicans into an alliance with radicals on the impeachment issue. Impeachment Trial of President Andrew Johnson The same day that Johnson dismissed Stanton, Rep. Thaddeus Stevens (R Pa.) introduced a resolution of impeachment which was referred to the Committee on Reconstruction. The next day, Feb. 22, the committee approved the resolution. The House vote, taken two days later, was 126 to 47 in favor, on a strict party-line basis. The House then drew up articles of impeachment and appointed managers to present and argue the charges before the Senate. Of the 11 articles, only one, article X, did not concern Johnson's removal of Stanton. Johnson's defense relied on his Dec. 12, 1867, message to the Senate in which he said that the Tenure of Office Act was unconstitutional. “It is the President,” Johnson wrote in that message, “upon whom the Constitution devolves, as the head of the executive department, the duty to see that the laws are faithfully executed; but as he cannot execute them in person, he is allowed to select his agents and is made responsible for their acts.” The President, Johnson argued, has the sole power and right to remove agents who do not execute his directives. In the short time between the House impeachment and the start of the Senate trial, conservative Republicans had time to reflect. One of the main objects of their reflection was fiery Ben Wade of Ohio. Wade was president pro tern of the Senate and, under the succession law then in effect, next in line for the presidency. He was one of the most extreme of the radical Republicans, a hard-liner on southern reconstruction and a monetary expansionist. The trial started on March 30. A speech by Sen. Charles Sumner (R Mass.), another leader of the radicals, gives some idea of the heat and partisanship of the proceedings. This “is one of the last great battles with slavery,” he said. “Driven from these legislative chambers, driven from the field of war, this monstrous power has found a refuge in the executive mansion, where, in utter disregard of the Constitution and laws, it seeks to exercise its ancient, far-reaching sway. All this is very plain. Nobody can question it. Andrew Johnson is the impersonation of the tyrannical slave power.” By May 11, the Senate was ready to ballot. The first vote was taken on the 11th article, which was a summary of many of the charges set forth in some of the preceding articles. The result was 35 guilty, 19 not guilty. If one vote had switched, the necessary two-thirds majority would have approved the conviction of the President of the United States. Seven Republicans joined the 12 Democrats in voting for acquittal. After the first vote, the Senate adjourned as a court of impeachment until May 26. When it reconvened, two more ballots were taken, on the second and third articles of impeachment. The results were the same as on the first ballot, 35 to 19. The Senate then abandoned the remaining articles and adjourned. Michael Les Benedict pointed out in The Impeachment and Trial of Andrew Johnson (1973) that the “reputation of no other President has risen so suddenly or fallen so precipitately as that of Andrew Johnson—from historical ‘goat’ in the 1890s to hero in the 1920s and 1930s and back to ‘goat’ and in some cases even villain in the 1960s and 1970s.…In the opinions of the earliest historians of Reconstruction, Johnson was in large part responsible for the evils they perceived in radical Reconstruction. An inept politician who thoroughly misjudged the temper of the North, a stump speaker who degraded the presidency with his harangues, Johnson may have had the right instincts, but his incapacity for leadership and stubborn refusal to accommodate even justified northern concerns played into the hands of the radicals.” Changing Historical View of Case Against Johnson Changing Historical View of Case Against Johnson By the 1920s, however, “a new appreciation of Johnson developed,” Benedict wrote. “A series of studies depicted him as the battling champion of the common man, valiantly resisting cynical radicals bent on the vindictive destruction of southern society and the subjugation of southern whites before ignorant and venal blacks led by corrupt white ‘Carpetbaggers’.…As historians have become more sympathetic to the radical Republicans in recent decades, they have tempered their judgments of the barely aborted attempt to remove the President.” Reflecting the appreciative view, Leon R. Yankwich wrote in 1938: “The acquittal of President Johnson saved the United States from what might otherwise have been a tragedy —a tragedy that might have branded as unworthy a man whom later generations have come to consider as a great patriot trying to carry on under trying circumstances.…Johnson…withstood the attempts of the radicals and extremists to crush the South. He sought, in his own ‘undiplomatic’ way, to uphold the cause of those who would heal the wounds of War, as Lincoln had desired.” The view of Johnson as the hapless victim of ruthless and vindictive radicals has been subject to reappraisal in recent years by revisionist historians. Roger H. Brown, professor of history at American University in Washington, D.C., notes that “the immediate background of the impeachment trial is to be found in Johnson's adamant refusal to cooperate with the radicals in protecting black freedmen against southern racist oppression. Determined to provide freedmen with the vote, civil rights and military protection against terrorist intimidation, the radicals clashed with the Tennessee President whose goal was to restore the Union on his own terms without concern for the black man's fate…Johnson's impeachment was an abortive political retaliation by men who believed that moral and political necessity demanded federal protection of freedmen in the South.” Raoul Berger believes that “the chief lesson which emerges from the Johnson trial is that the impeachment of the President should be a last resort.” J. W. Anderson, writing in The Washington Post on Nov. 14, 1973, agrees. “Impeachment is inherently divisive and destructive. It means a prolonged paralysis of the federal government—in 1868 it took four months from the House's vote of impeachment to the end of the trial in the Senate. A vote that narrowly failed to carry two-thirds of the Senate, as in the Johnson case, would leave the President crippled but still in office, with three years of his term to run.” Disuse of Impeachment Machinery After 1 868 For more than a century after the Johnson trial, Congress, mindful of the partisanship that the event engendered and confronted with the growth of executive power, was reluctant to consider presidential impeachment again.Impeachment by the House has been confined, with one exception, to federal judges. That exception was Secretary of War William W. Belknap who was impeached April 3, 1876, and charged with graft in connection with the appointment and retention of an Indian post trader at Ft. Sill, Okla. Despite his resignation, March 3, the Senate voted that it still had jurisdiction. And despite his obvious guilt, the Senate acquitted him, presumably because enough senators believed they lacked jurisdiction. An attempt to impeach Grant's Vice President, Schuyler Colfax, on the ground that he accepted a bribe during his tenure as Speaker of the House, failed to win Judiciary Committee approval in 1872. The committee concluded that since Colfax's offense was committed while he was a member of Congress, he was not, as Vice President, subject to impeachment. Before Spiro T. Agnew's resignation, lawyers were studying the Colfax precedent in the event the House was forced to begin impeachment proceedings against Agnew. Time magazine noted that the precedent set by the conviction of Judge Ritter in 1936 may pose a threat to President Nixon. Ritter “was accused in six articles of impeachment of a variety of relatively serious financial offenses. But the Senate convicted him on only the seventh article, which charged that ‘the reasonable and probable consequence of his actions and conduct…is to bring his court into scandal and disrepute…and to render him unfit to serve.' House leaders in recent days have been looking over Ritter's impeachment, and they are most interested in the seventh article. Says one Judiciary Committee insider: ‘Strike Ritter's name and substitute Nixon's and you're in business.' “ Go to top Presidential Removal and Succession Changes in Succession Laws: 25th Amendment The Johnson Impeachment has a direct bearing on the present situation in still another way. Johnson, like Nixon, was without a Vice President. Under the law of succession then in effect, Johson's removal would have meant that Senator Wade, president pro tempore of the Senate, would become chief executive. But Wade, one of the most intransigent of the radical Republicans, was anathema to many of the more conservative Republicans. The law of succession has been changed twice. The original succession law, passed in 1792, provided that the president pro tempore of the Senate and the Speaker of the House followed the Vice President, in that order. In 1886, Congress changed the line of succession, replacing the two congressional leaders with members of the President's cabinet, in the order in which their departments had been established. Under this law, the Secretary of State came immediately after the Vice President.Harry S Truman, soon after becoming President upon the death of Franklin D. Roosevelt in 1945, sent Congress a message asking for a reexamination of the order of presidential succession. Criticizing the 1886 law, Truman asked Congress to put an elective official in line for the presidency and suggested, after the Vice President, the Speaker of the House. The Presidential Succession Act was not passed until 1947. It provided that the Speaker, the president pro tem, and cabinet members of the oldest departments would succeed to the presidency in that order. Until the 25th Amendment was ratified in 1967, there was no way of filling a vacant vice-presidential post. Section 2 of the amendment provides that “whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon the confirmation by a majority vote of both houses of Congress.” In a gala televised ceremony on Oct. 12, 1973, President Nixon announced that Gerald R. Ford was his nominee to fill the office vacated two days earlier by Spiro T. Agnew, who resigned upon pleading no contest to income tax evasion in Baltimore federal court. The Senate approved Ford's nomination on Nov. 27 by a vote of 92 to 3 and the House scheduled a vote for Dec. 6. After Agnew's resignation, House Speaker Carl Albert (D Okla.) became next in line for succession, followed by Sen. James O. Eastland (D Miss.). Albert, who as Speaker would preside over impeachment proceedings, stated on several occasions that he had no desire to serve as President. Debate Over Whether President Should Resign Many of the President's most vociferous critics contend that, despite their objections to his three possible successors, the country would be better served if he were removed from office. Columnist James J. Kilpatrick, a conservative, disagrees. “A judgment on this President must be left not to the Senate in a tumultuous hour, but to history and to the ages,” Kilpatrick wrote on Oct. 14. “An effort at outright impeachment would polarize the electorate and tear the country asunder….” The conservative weekly National Review on Nov. 9 suggested resignation as an alternative to the “presumably catatonic process of impeachment.” Harvard Professor Ernest R. May, writing in the Washington Star-News on Nov. 4, argued that an impeachment trial might be in the President's best interest. “Mr. Nixon's enemies are calling for impeachment. Perhaps his friends should also do so. For impeachment is only indictment. The Senate would have to render a verdict. And what the President needs is a formal verdict of not guilty.…The actual situation is that the President is being tried by procedures more slow, more painful, and more damaging than impeachment.” A public-opinion poll taken in mid-November by Daniel Yankelovich, Inc., for Time magazine revealed that 49 per cent of those asked wanted the President to remain in office, down from 60 per cent in August. In contrast, 29 per cent favored resignation, compared with 20 per cent three months earlier. Those opting for impeachment remained steady at 10 per cent. Harris and Gallup polls recorded slightly higher percentages in favor of removing Nixon from office, especially after the dismissal of Archibald Cox and the disclosure of missing tapes, as is shown in the following table: | | Gallup | Harris | | | Should Nixon be compelled to leave the presidency? | In view of…the Watergate affair do you think Nixon should resign? | | | Yes | No | Yes | No | | August | 26% | 61% | 28 | 63 | | November | 37 | 54 | 43 | 47 | In response to further questions asked by Harris in the November polling, a majority (59 per cent) would favor resignation “if it is proved that President Nixon knew about the cover-up of White House involvement in Watergate” and a majority (63 per cent) would favor impeachment or resignation “if the tapes show he was involved in Watergate.” Boston Mayor Kevin H. White, writing in The New York Times on Oct. 30, proposed that a special election be held in 1974 for President and Vice President. White explained that the Constitution lets Congress provide what would happen if both offices should become vacant.The Succession Act of 1792 provided for a special popular election. This law was made optional in 1886 and dropped in 1947. If the impeachment debate intensifies, suggestions for easing the trauma of removing and replacing the President will doubtless be given more attention. Go to top
Bibliography
Books
Benedict, Michael Les, The Impeachment and Trial of Andrew Johnson, W.W. Norton & Co., 1973.
Berger, Raoul, Impeachment: The Constitutional Problem, Harvard University Press, 1973.
Elaine, James G., Twenty Years of Congress, Vol. II, Henry Hill Publishing Co., 1886.
Brant, Irving, Impeachment: Trials and Errors, Alfred A. Knopf, 1972.
Bryce, Viscount James, American Commonwealth, Macmillan, 1908.
Corwin, Edward S., The President, Office and Powers, New York University Press, 1957.
Hamilton, Alexander, James Madison and John Jay, The Federalist Papers, The New American Library, 1961.
Kennedy, John F., Profiles in Courage, Harper & Brothers, 1955.
Schlesinger, Arthur M. Jr., The Imperial Presidency, Houghton Mif-flin Co., 1973.
Articles
Berger, Raoul, “Impeachment for ‘High Crimes and Misdemeanors,’ “Southern California Law Review, Vol. 44, No. 395, 1971, pp. 395–460.
“Everything You Wanted to Know About Impeachment…But Were Afraid to Ask,” Time, Nov. 5, 1973, pp. 32–33.
“Power of Impeachment,” Congressional Quarterly's Guide to the U.S. Congress, 1971, pp. 265–272.
Shartel, Burke, “Federal Judges—Appointment, Supervision, and Removal,” Michigan Law Review, May 1930, pp. 870–909.
Simpson, Alex Jr., “Federal Impeachments,” University of Pennsylvania Law Review, May 1916, pp. 651–695, and June 1916, pp. 803–830.
Smith, Gaddis, “The American Way of Impeachment,” The New York Times Magazine, May 27, 1973, pp. 10–11, 48–50, 52–53.
Stone, I.F., “Impeachment,” New York Review, June 28, 1973, pp. 12–19.
“The Impeachment of Andrew Johnson,” The Annals of America, Vol. 10, 1968, pp. 126–133.
Viorst, Milton, “Bill Douglas Never Stopped Fighting the Bullies of Yakima,” New York Times Magazine, June 14, 1970, pp. 8, 32.
Yankwich, Leon R., “Impeachment of Civil Officers Under the Federal Constitution, Georgetown Law Journal, May 1938, pp. 849–867.
Reports and Studies
American Civil Liberties Union, “The First Pamphlet Proposing the Creation of Committees of Correspondence to Redeem the Constitution of the United States by Causing the Impeachment of Richard M. Nixon,” Oct. 24, 1973.
American Civil Liberties Union of the National Capital Area, “The Impeachment Handbook,” November 1973.
Editorial Research Reports, “Ethics in Government,” 1973 Vol. I, p. 373; “Presidential Accountability,” 1973 Vol. I, p. 165.
House of Representatives, Judiciary Committee, “Impeachment,” October 1973.
Yale University Committee on Impeachment, “Introductory Analysis of Possible Grounds for Impeachment,” Nov. 6, 1973.
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Footnotes
Go to top Special Focus Between March 1969 and May 1970, the United States flew more than 3,600 bombing raids over neutral Cambodia at a cost of about $145 million These raids were kept secret from Congress and the public. They are alleged to be a violation of one of two federal statutes. Title 22, Section 2370(k) of the U.S. Code requires that specific congressional approval must be obtained for any assistance, including military assistance, over $100 million. Title 22, Section 2318 allows the President to draw on a fund of $300 million for actions vital to the security of the country. If this fund is used, the President must notify three committees of the Senate and the Speaker of the House. —Yale University Committee on Impeachment On July 23, 1970, he personally approved the “Huston Plan” for domestic political surveillance and espionage by such methods as burglary, wiretapping and eavesdropping, mail covers and military spying on civilians. These methods of political surveillance were employed against dissenters, political opponents, news reporters and government employees. He and his aides employed governmental powers to harass and punish critics of his administration regarded by them as “enemies.” He and his aides interfered with a free press through the use of wiretaps, FBI investigations and threats of criminal prosecutions. He secretly recorded conversations in his office without advising the participants. He and his aides interfered with the right of peaceable assembly and protest as in the arrest of thousands of persons on May Day, 1971, and on many other occasions. He has usurped the war making powers of Congress as in the bombing of neutral Cambodia, and he deliberately concealed the bombing from Congress and the people of the United States; and he announced that he would do so again under similar circumstances. He established within the White House a personal secret police (the “plumbers”), operating outside the restraints of the law, which engaged in criminal acts including burglaries, war rantless wiretaps, espionage and perjury. He and a principal aide offered a high federal post to the presiding judge during the Ellsberg trial, and, for a prolonged period, he withheld from the courts knowledge of the burglary of the office of Dr. Ellsberg's psychiatrist. He and his aides interfered with and distorted the administration of justice through such acts as his effort to limit the scope of the FBI investigation of the Watergate break-in. He and his aides caused the politically motivated and unjustified prosecutions of dissenters and corrupted the constitutional function of grand juries to make them instruments of political surveillance and harassment. He has perverted and attempted to pervert the operation of various federal agencies, including the Department of Justice, the National Security Council, the Secret Service, the State Department, the Defense Department and the Central Intelligence Agency by engaging them in political surveillance and in the falsification of information made available to Congress and the America public. Article I, Section 2 The House of Representatives…shall have the sole Power of Impeachment. Article I, Section 3 The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath of Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Article II, Section 2 The President shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. Article II, Section 4 The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Article III, Section 2 The Trial of all Crimes, except in Cases of Impeachment, shall be by jury. Name. William Blount (1798–99) Position. Senator Charge.Attempt to keep an Indian agent from performing duty. Decision.Senator not subject to impeachment Name. John Pickering (1803) Position. Federal Judge Charge. Misconduct in a trial and being intoxicated. Decision. Removal from office Name. Samuel Chase (1805) Position. Associate Justice of the Supreme Court Charge. Misconduct in trials impairing the court's respect Decision. Acquitted Name. James H. Peck (1826) Position. Federal Judge Charge. Misconduct in office by misuse of contempt power. Decision. Acquitted Name. West H. Humphreys (1862) Position. Federal Judge Charge. Supported secession and held Confederate office Decision. Removed from office Name.Andrew Johnson (1868) Position. President of the United States Charge. That he removed Secretary of War contrary to an act of Congress and criticized Congress Decision. Acquitted Name. William W. Belknap (1876) Position. Secretary of War (resigned) Charge. That he received money for appointing and continuing in office a post trader at Ft. Sill, Okla. Decision. Acquitted Name. Charles Swayne (1904–05) Position. Federal Judge Charge. Padding expense accounts; using railroad property in receivership for his personal benefit; misusing contempt power Decision. Ac quitted Name. Robert W. Archbald (1912) Position. Judge, United States Commerce Court Charge. Misconduct including personal profits, free trips to Europe, improper appointment of jury commissioner Decision. Removed from office 10. Name. Harold Louderback (1933) Position. Federal Judge Charge. Appointing incompetent receivers and allowing them excessive fees Decision. Acquitted Name.Halsted L. Ritter (1936) Position. Judge Charge. Participating in champertous proceedings brought before him for a cash consideration; practicing law while serving as a federal judge; preparing and filing false income tax returns Decision. Removed from office Go to top
Document APA Citation
Costello, M. (1973). Presidential impeachment. Editorial research reports 1973 (Vol. II). http://library.cqpress.com/cqresearcher/cqresrre1973120500
Document ID: cqresrre1973120500
Document URL: http://library.cqpress.com/cqresearcher/cqresrre1973120500
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