I was heartened this week that in the debate over the legality of the national emergency declared by President Trump, people are talking about the precedents such declarations set. This has nothing to do with my feelings about immigration, but my feelings about precedent – both those precedents set in the past, and whatever new precedent we may set by decisions made today.
As we grow closer to issuance of the Mueller Report and the possibility of impeachment – which I’m still predicting – I thought the time right to reflect on precedent.
I begin with a reminder of some precedents set by voters. After Marion Barry, then a married Mayor of the District of Columbia, was caught on tape in an FBI sting soliciting sex and doing crack cocaine with a girlfriend, he was convicted by a majority-black jury and did time for the crime. Yet immediately after his release from prison, his constituency reelected him, first to City Council and then to Mayor. His campaign slogan was, “He May Not Be Perfect, But He’s Perfect for D.C.” He won by large margins.
In his 1963 inaugural address as governor of Alabama, George Wallace, champion of the Jim Crow laws, declared that he stood for “segregation now, segregation tomorrow, segregation forever.” Yet he was reelected Governor of Alabama several times and in 1968, carried five states in his third party campaign for President.
In 1969, Teddy Kennedy drove
a young girl off a bridge, failed to report the fatal accident until others had
already found her, and until any alcohol in his system had had time to dissipate. He paid money to the girl’s family to make no
public comments. And yet, a year
later, he was re-elected to his Senate seat by a 62% majority. By the time he died, he’d been reelected six
more times. There was widespread support
for his subsequent campaign for the Presidency.
I didn’t support any of these three politicians, but I’ve always supported the electorate’s right to be represented by whomever they desire. American Democracy has survived in part bcause we have enough faith in our system that we’re content to wait until the next election cycle, to vote out administrations we find abhorrent. As the cases of Barry, Wallace and Kennedy seem to make clear, we don’t require our political candidates to be free of wrongdoing. The will of the electorate being supreme, it apparently includes the power to forgive, excuse, or simply ignore the misconduct of a candidate for office. Misconduct is not, per se, grounds for disqualification, ineligibility, or removal. If George Wallace had won the presidential election, would he have then been subject to impeachment for his segregationist views? Should Ted Kennedy have been expelled from the Senate for his crimes at Chappaquiddick? If he’d been elected president, would he have been subject to impeachment for those crimes?
With those questions in mind, I move on to the precedents Congress
has set for removals from office.
Our Constitution permits Congress to expel its own members, on a two thirds vote. Whereas presidents must be accused of “high crimes and misdemeanors,” there’s no similar standard set out before Congress can expel its own members. One might imagine that with so many of them, there’s been a lot more crimes and misdemeanors committed by members of Congress over the years than by Presidents. Yet only a handful of Congressmen have ever been expelled by vote of their peers. The great majority of them were Congressmen from southern states expelled after those states succeeded from the union; they were expelled for “support of the Confederacy,” i.e., for conduct that essentially amounted to treason. Clearly, others have left office voluntarily amid scandal and disgrace, but apart from those civil war rebels, there have apparently been only three members of Congress actually expelled.:
William Blount was charged with treason in 1797 after a letter in his handwriting proved that he was conspiring with Great Britain to take over Spanish Louisiana and Florida. (As a major land speculator, Blount stood to profit from the predicted increase in land prices.) Treason is often cited as the most obvious of “high crimes and misdemeanors.”. Interestingly, though, Blount’s home state of Tennessee continued to elect him to its state house; he served as its speaker until his death.
183 years later, Michael Myers of Pennsylvania was expelled for taking a $50,000 bribe from an FBI agent in connection with the Abscam scandal. Proof, again, was rock solid. And in 2002, Jim Trafficant of Ohio was expelled after being criminal convicted on numerous counts of bribery, racketeering, and tax evasion. Again, solid proof.
Apart from that handful, that’s it. My sense from this is that Congress has been amazingly cautious in expelling its own members. By comparison, it has shown greater willingness to go after presidents. Still, it has only impeached two of them, Andrew Johnson and Bill Clinton. Since Nixon’s impeachment was certain if he hadn’t resigned first, let’s add Nixon to the mix and call it three. In case we’ve forgotten, I offer an attempt to summarize them:
President Andrew Johnson wanted to replace his Secretary of War, William Stanton. Having succeeded to the presidency as a result of the Lincoln assassination, Johnson, a Democrat, had inherited Republican Stanton from Lincoln. Johnson and Stanton had very different views on reconstruction, and Johnson felt he had the right to a cabinet of his choosing. The Republican-controlled Congress disagreed, passing a law that prevented the President from dismissing cabinet members without its consent. Johnson vetoed the law. Congress overrode the veto. Johnson considered the law an unconstitutional interference by the legislative branch of government with the prerogatives of the executive branch, so he dismissed Stanton anyway. For that, he was impeached.
Johnson’s view about the constitution turned out to be
correct. Years later, the Supreme Court
decided that the law in question, restricting
the President’s right to dismiss members of his cabinet, had been
unconstitutional. But in the meantime,
the Republic-controlled House had already impeached the Democratic president
for the “high crime and misdemeanor” of violating their law by dismissing his cabinet
officer. History has judged the
impeachment as a highly partisan political squabble that paid little heed to
the opinions of the public. The case strikes me as an example of how not to use the impeachment power.
The articles of impeachment drawn up against Richard Nixon for his involvement in Watergate were for “obstruction of justice” and “abuse of power” (which boiled down to actions taken to cover up and impede investigation of an illegal break-in by his agents and supporters) and for “contempt of Congress,” i.e., failing to comply with Congressional subpoenas. Personally, I wonder about that last charge – whether an executive failure to comply with a legislative subpoena is the sort of separation of powers dispute that characterized the Johnson impeachment. But as for the first two charges, they were (1) for crimes by Nixon (perjury and obstruction), (2) in connection with investigation into another criminal act (essentially a burglary), (3) committed during the President’s term in office and (4) presumably committed for the purpose of influence his reelection. Unlike the Johnson case, there was no viable argument that the criminal laws violated were unconstitutional. In my view, the impeachment articles proposed against Nixon offer a better example of an appropriate use of the impeachment process.
I also find it worth noting that at the time of his near-impeachment, Nixon was a highly unpopular president whose approval rating in public polls had dropped to the mid -twentieth percentile level. A lot of the sentiment against Nixon was actually due to matters extraneous to the impeachment charges, most especially, his conduct of the War in Vietnam. But regardless of the cause for his low popularity, the Nixon case raises the question of the extent to which public sentiment should be a consideration in impeachment proceedings. Thinking of Marion Barry, George Wallace, and Ted Kennedy, I’m reminded that we live in a democracy, in which the public’s right to representatives of their choice should not be lightly trifled with. Any removal of an elected official from office serves to put Congress in the position of second-guessing the expressed will of the electorate. And as you might suspect in a post on WMBW, any decision by a few people to override the expressed preferences of millions risks being nothing more than arrogance. As noted in an earlier WMBW post, arrogance is the taking to yourself of authority not rightfully yours. In a democracy, any time Congress removes someone elected by the people, it’s hard not to ask whether they’re overstepping their bounds. That said, why would popular sentiment not be an appropriate consideration in deciding whether to impeach? If “high crimes and misdemeanors” ultimately boils down to a political question, is that necessarily a bad thing?
The impeachment of Bill Clinton was for alleged perjury and obstruction of justice stemming from sexual misconduct with Monica Lewinsky and Paula Jones. An Arkansas state employee, Jones alleged she’d been brought to then Governor Clinton’s motel room by state troopers, where he propositioned her and exposed himself to her. She filed her sexual harassment lawsuit against Clinton within the applicable three year period of limitations.
In the Me Too era, it’s interesting that the Jones lawsuit was only dismissed because the presiding judge found she could not prove that Clinton’s conduct damaged her. (Not that she hadn’t done so, but that she could not do so.)
That quirk of history aside, Clinton was asked in the Jones lawsuit about his relations with White House intern Monica Lewinsky. Clinton’s later admissions and public apologies remove any significant doubt that he did in fact have a sexual relationship with Monica Lewinsky. But in sworn testimony on multiple occasions, Clinton denied having any sort of sexual relationship with her, or even being alone with her. The charge of obstruction of justice was for trying to influence the testimony of Lewinsky and Clinton’s own White House Secretary to support him in his sworn denials – efforts quite similar, it seems to me, to the obstruction of justice charges against Nixon.
At the time, there were many who defended Clinton by minimizing the national significance of a President’s sexual activities. Clinton complained that the inquiries were an invasion of his “privacy.” But the charges against Clinton weren’t for the sexual activity, they were for the alleged obstruction of justice that surrounded it, and for the perjury Clinton committed. (Nixon was widely considered a liar, but he was not charged with perjury, i.e., lying under oath, as Clinton was.) As in Nixon’s case, there were two levels of misdeed – the underlying one (burglary, in Nixon’s case, sexual harassment in Clinton’s) and the subsequent misdeeds for which impeachment proceedings were brought – obstruction of justice and perjury. The Democrat Clinton was impeached, but while Republicans split on the vote to remove him from office, every Democratic senator voted to acquit him of all charges, so conviction by a two-thirds majority failed.
In today’s environment. It seems unlikely that Clinton’s sexual activities would be dismissed as easily as many dismissed it in the 1990’s. So, if public sentiment is a factor (and I think it is, whether it should be or not), the acquittal of Clinton might have come down differently today. And that’s true, I think, even though public sentiment about perjury and obstruction of justice has not seemed to change from what it was back then. It’s public sentiment about sexual abuse by people in power that have changed.
I certainly wonder, if President Trump were impeached for committing perjury and obstructing justice with respect to, say, his relationship with Stormy Daniels, Democrats would unanimously vote to acquit him, as they did with Clinton.
As with Nixon’s obstruction of justice, there was no question about the constitutionality of the laws Clinton was accused of violating. As with Nixon, the charges against Clinton were for crimes committed during the term of office. Since the misconduct by Clinton occurred during his second term of office, it was not designed to influence an upcoming election, as Nixon’s presumably was, so a removal from office could not be said to be any sort of remedy for election fraud. But public sentiment was quite different than it had been in the Nixon case. In contrast to Nixon’s abysmal public approval ratings, Clinton’s remained in the mid 60th percentile throughout his presidency, and reached a high in the mid 70th percentile after the impeachment proceedings.
Finally, I note that all three Presidential impeachments so far have been brought by an opposition Congress – twice by Republicans against a Democratic President, and once by Democrats against a Republican President. No Congress has ever gone after a President of its own party.
Bottom line: there seems to be very little precedent for Congress to remove a president, or one of its own, from office. Treason seems to be enough, and so does taking bribes, but there’s been a mixed record when it comes to perjury and obstruction of justice. The differences seem better accounted for by partisan politics and by the political climate of the day, i.e., the popularity of the President accused.
I wonder whether, to some extent, this last factor is appropriate. Other countries have procedures for recall elections. In this country, we have them for other public offices. Ultimately, in any democracy, one might think of impeachment and removal from office by Congress as a substitute for such a recall election. I think the arguments are strong that Congressmen in red and blue states will, and should, be influenced in their actions by what they think their constituents want, and frankly, up to a point, I’m not bothered by that. But Nixon should not have been impeached because he was unpopular, and Clinton should not have been acquitted because he was a Democrat. There’s still precedent to be considered regarding the actual allegations made and proven. And I strongly think it should be.
When Congress acts, I hope it doesn’t deprive us voters, collectively, of the right to be represented by the leaders we choose. Otherwise, I may think them guilty of great arrogance. That said, I think there’s a point at which elected officials should unseat other elected officials, I just haven’t decided exactly where I think that point is. But as we try to sort such things out is, I hope we act consistently with past precedent, and with awareness that we’ll be setting precedent for the future as well.