GOP's brash impeachment talk: Why they clearly don't understand the Constitution

With a new congressional majority, Republicans may finally pursue a long-stated goal. Here's why it's so warped

Published November 6, 2014 5:58PM (EST)

  (Reuters/Chris Keane/AP/Carolyn Kaster/Reuters/Lucas Jackson/Photo montage by Salon)
(Reuters/Chris Keane/AP/Carolyn Kaster/Reuters/Lucas Jackson/Photo montage by Salon)

This post originally appeared at The Washington Spectator.

The recent 40th anniversary of President Richard Nixon’s resignation from office gives us a useful perspective on the calls by right-wingers for the impeachment of President Barack Obama.

The grounds they claim are vague, if not incoherent. In July, for example, Sarah Palin, former Republican vice-presidential candidate and Tea Party favorite, charged him with “purposeful dereliction of duty,” because people illegally cross the Mexican border into the U.S. This despite the fact that Obama has deported more undocumented aliens than all prior presidents combined. Republicans in the House and Senate have openly toyed with the idea of impeachment. One representative wistfully exclaimed that impeachment of Obama would be a “dream come true.”

The Constitution allows impeachment only for “treason, bribery or other high crimes and misdemeanors.” Neither treason, a term defined in the Constitution, nor bribery, a term not defined but well understood, is alleged by the president’s detractors.

The key term is “high crimes and misdemeanors.” Its meaning is somewhat opaque, because it is archaic and no longer in general use. Still, we can find the meaning in British legal history as well as in the debates surrounding the adoption of the Constitution. High crimes and misdemeanors are political “crimes,” meaning serious abuses of power. They are not crimes in the ordinary sense of the word (although they might be), but political misdeeds so grave that they threaten the system of government itself or the rights of the people.

Impeachment power was given to Congress because the framers were wise about human nature and recognized that a president could so endanger our democracy and our liberties that the country could not wait until the next presidential election for relief. Yet the framers did not want the impeachment power to create a parliamentary system in which the president would be subservient to Congress, something that could readily happen if the grounds for removal were broad and votes to impeach easy to obtain. The framers narrowed the grounds so that dislike of a president’s policies or of the way a president managed the government (“maladministration”) would not permit a president’s removal. And because impeachment unravels a presidential election, the centerpiece of our democracy, the framers made the removal of a president from office difficult, requiring not just a majority vote in the House of Representatives, but a two-thirds vote in the Senate.

These barriers to frivolous impeachments have ensured that in the 225 years since the country’s founding, no president has been removed from office, although the House of Representatives, buoyed by partisan emotions, has voted twice for impeachment, once in the case of President Andrew Johnson and the other in the case of President Bill Clinton. Both impeachments have not held up well in the light of history. The Johnson impeachment grew out of disagreements between Congress and the president about Reconstruction. The Clinton impeachment involved his testimony in a civil deposition about his sexual relationship with a White House intern. Whether false or disingenuous, the president’s testimony did not involve any use, much less abuse, of his presidential powers, and the Senate failed to muster the two-thirds vote to remove him from office.

Contempt for the Constitution

The Nixon impeachment proceedings — which have never seriously been challenged even after 40 years of historical scrutiny — offer a stark contrast. In the fall of 1973, the House Judiciary Committee commenced impeachment proceedings. They were triggered by the enormous public outcry after Nixon ordered the special Watergate prosecutor fired for trying to obtain tape recordings of White House conversations about Watergate. After conducting its own lengthy inquiry, the committee voted on a bipartisan basis for articles of impeachment. Then a White House tape, ordered released by the U.S. Supreme Court, proved by his own words that Nixon personally orchestrated the coverup of the Watergate break-in from the beginning. At that point, all the holdout Republicans announced support for impeachment, making the committee’s decision unanimous. This meant that the House and Senate would vote overwhelmingly for impeachment and removal from office. It was in light of the certainty of that vote that Richard Nixon resigned.

There were two key features of the Judiciary Committee proceedings: first, bipartisanship and fairness, and second, the compiling of overwhelming evidence that proved a broad range of misconduct. The first article of impeachment dealt with the coverup of the Watergate break-in. The article described a host of Nixon misdeeds, including offering money and presidential pardons to the Watergate burglars to ensure their silence; suborning perjury of his aides; obtaining secret grand jury information and passing it on to potential witnesses. (Significantly, Nixon was named an unindicted co-conspirator in the Watergate obstruction of justice trial in which his top aides were convicted and sent to prison.) The second article was for abuse of power — the use of presidential power to attack the constitutional rights of Americans for personal, political gain. These acts included authorizing the illegal wiretapping of journalists and White House aides; approving the break-in at Daniel Ellsberg’s psychiatrist’s office to obtain defamatory materials against Ellsberg (who had released “The Pentagon Papers”); ordering IRS audits of persons who opposed Nixon’s policies and were on his “enemies list”; and on a phony claim of national security, directing the CIA to stop the FBI investigation into the Watergate break-in.

After the committee debated the evidence and the law in televised hearings, the American people strongly supported the committee’s decisions, despite the fact that many had voted for Nixon’s reelection only a year and a half earlier. The proceedings upheld the rule of law.

Sadly, the facts behind the Nixon impeachment experience have been largely forgotten. Republicans, angry at the elections of Clinton and Obama, have tried to undo what was decided at the ballot box. Impeachment proceedings that have no basis in fact or law simply show contempt for the Constitution, for democracy and for the American people.

By Elizabeth Holtzman

 Elizabeth Holtzman is a former four-term Democratic Congresswoman from New York. She served on the House Judiciary Committee that investigated the role of President Richard M. Nixon in the Watergate scandal and voted to impeach him. Holtzman is a graduate of Harvard Law School and practices law in New York. She is a frequent speaker about political affairs on MSNBC and CNN, a well-published author in the New York Times and is the author of "The Impeachment of George W. Bush," "Who Said it Would be Easy?" and "Cheating Justice."

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