The upcoming Senate trial will, courtesy of Senate Majority Leader Mitch McConnell, show the deep respect for precedents so woefully ignored by the House. As recounted by Matthew Continetti in National Review Online:
Clinton’s trial was divided into pieces. The Senate agreed unanimously to begin with a briefing, opening arguments, questions from senators, and a vote to dismiss. Whether to hear witnesses or introduce additional evidence were questions decided later. “That was the unanimous bipartisan precedent from 1999,” McConnell said. “Put first things first, lay the bipartisan groundwork, and leave mid-trial questions to the middle of the trial.” …
The reliance on precedent is one of McConnell’s most effective strategies. In 2016 he invoked the “Biden rule” to prevent confirmation hearings for Judge Merrick Garland, President Obama’s nominee to replace Antonin Scalia on the Supreme Court, until after the election. The following spring, when Senate Republicans voted to end the filibuster for Supreme Court nominees, McConnell noted that former majority leader Harry Reid, a Democrat, had done the same for lower-court nominees in 2013.
McConnell’s task was made easier by Nancy Pelosi and Chuck Schumer holding up transmittal of the impeachment articles, a patently phony improvisation aimed at getting Senate Republicans to do what House Democrats had declined to do: subpoena key administration witnesses. The House leaders knew they would lose their case in the courts (see my December 21 American Spectator article), but President Trump shut the door by (properly) refusing to waive executive privilege.
Impeachment practice for most of the 20th century was little different from that of the 19th: directed mostly at judges. (In all, since 1789, the House has seen 98 attempts to impeach judges and 11 attempts to impeach presidents. While the House gets first crack at what constitutes an impeachable offense, the Senate gets the last word during the removal trial.
Ironically, it was in 1968, the centennial anniversary of the Andrew Johnson impeachment and near-removal, that matters took a different turn. It began with Lyndon Johnson’s decision to elevate Abe Fortas, whom he had put on the Supreme Court as an associate justice in 1965, to the position of chief justice, Earl Warren having retired at the end of the Court’s Spring 1968 term. But Fortas was confronted with strong opposition to his elevation and then faced financial conflicts of interest that led him to resign from the Court in May 1969. His seat was not filled until Harry Blackmun was confirmed a year later. President Nixon picked Warren Burger for the chief justice seat.
Enter then-House Minority Leader Gerald Ford. On April 15, 1970, two months after associate justice William O. Douglas published Points of Rebellion, Ford called for his impeachment. His speech is remembered best for his blunt comment as to what constitutes an impeachable offense: “The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given point in history.”
Ford’s remark has been widely misinterpreted as meaning that the House can pick any reason it desires, no matter how trivial. But Ford himself prefaced his famous statement with this, about the Supreme Court:
I would never advocate an action against a Member of that court because of his political philosophy or the legal opinions which he contributes to the decisions of the court.… Probably I would disagree, were I on the bench, with most of justice Douglas’s views.… But a judge’s right to his legal views, assuming they are not improperly influenced or corrupted, is fundamental to our system of justice. [Emphasis in original.]
Ford cited two “high crimes and misdemeanors” that he felt justified impeaching Douglas: financial conflicts of interest and writings that in Ford’s view showed Douglas endorsing a right of violent revolution. Ford’s effort, however, came to naught. Then came the twin presidential impeachment dramas of 1974 and 1998–99.
Richard Nixon. In contrast to the Andrew Johnson fiasco, the Nixon impeachment was conduced with relative procedural fairness. House Judiciary Committee chairman Peter Rodino, quintessential New Deal Democrat from New Jersey, took great care to see that the president’s legal team could participate at all stages of the inquiry. One major disparity was that the Democratic staff was more than 10 times the staff allotment for Republicans. This makes McConnell’s choice of the 1999 Clinton trial the wisest choice of precedent.
It is also very important to understand the precise scope of the Supreme Court’s July 24, 1974, decision, 8-0, in U.S. v. Nixon. (William Rehnquist, then an associate justice, recused himself, because he had served in the Nixon Justice Department.) The court unanimously held that a generalized assertion of presidential confidentiality per executive privilege must give way to a prosecutor’s demand for specific evidence pertinent to an ongoing criminal investigation. Congress, by contrast, does not have a legal entitlement to breach executive privilege; members may, however, be given such evidence — if not classified — at the discretion of a prosecutor who is lawfully entitled to obtain such evidence. Thus, special prosecutor Leon Jaworski shared some of the Nixon tape conversations with HJC chairman Rodino and ranking HJC minority member J. Edward Hutchinson of Michigan. No such entitlement for members of today’s Congress exists, as there is no ongoing criminal investigation. This is why Democrats did not go to Court last fall.
Bill Clinton. The Clinton impeachment followed the Nixon model, albeit with different result. HJC Chairman Henry Hyde, a conservative Illinois Republican, followed the Rodino playbook to the letter.
In his 2011 account, Catching Our Flag, James Rogan, one of the House managers who presented the case to the Senate, was able during his 1998 preparation to get a rare interview with Peter Rodino. After warning Rogan that every member of the impeachment panel should expect to be investigated by opponents, he counseled against setting a final date, because it would encourage stonewalling. He also said that impartiality and the appearance of it was essential. Another notable point Rodino made to Rogan was that the speaker of the House, Carl Albert, resisted pressure from Democrats to replace Rodino with a more experienced HJC chairman. Albert did not want it to look like he changed the rules in midstream, so as to topple the president. This stands in stark contrast to Adam Schiff colluding with the phony whistleblower to change complaint rules so as to permit reliance on hearsay evidence. (For detail, see my November 6 American Spectator piece.)
Thus, the Nixon and Clinton models saw a House controlled by the party not in the White House. Yet both cases saw proceedings conducted with scrupulous attention to traditional American ideas of fundamental fairness and due process of law. This brings us to the present 21st-century imbroglio, where these norms were, as in the Andrew Johnson case — but in even more extreme form — traduced by the House cabal.
Perhaps nothing better symbolizes the disgrace of the Democrats than the incredible fact that of all people to sit on the House Rules Committee (which makes the rules for congressional proceedings) — and No. 2 in seniority — is none other than Alcee Hastings, who represents a Florida congressional district. In 1989, Hastings, then a federal district court judge, was impeached by the House and convicted in the Senate, for having accepted numerous bribes. (Hastings had been acquitted in a prior criminal trial, despite clear evidence of his guilt.) Then, in 1992, Hastings ran for his House seat, and, incredibly, was elected. He is now a 14-term congressman.
Bottom Line. Predictably, the result in l’Affaire Trump will produce greater polarization of an already highly divided electorate. Impeachment of a president, inherently quasi-regicidal, is bound to generate elation among the victors and anguish among the losers. Alone what can temper the bitter disappointment they feel is knowledge that proceedings were — from start to finish — conducted with the scrupulous fairness shown in the Nixon and Clinton cases.
Partisans of neither party trust their opponents; what provides a substitute is trust in the process. What is eminently avoidable — and essential to avoid political instability — is a process so perverted that the losers become angry, outraged, and, in extreme cases, violent in their protest.
Hatched after amending procedural rules furtively, conducted in Star Chamber secrecy and lack of basic due process, the full end-to-end transparency impeachments require is already lost. This has been amplified by the naked anti-Trump partisanship in much of the media, working hand in glove with Schiff & Co. through a cascade of leaks orchestrated to maximize anti-Trump feeling among the electorate.
Any victory for the Democrats coming out of this mess will prove pyrrhic. It may cost them the 2020 presidential election. But even if the Democrats sweep come November, the new president will take office with nearly half the voting electorate regarding the winner as fundamentally illegitimate.
In sum, we cannot all be winners after an impeachment. But we can — and will — all be losers if the game is seen by the public to have been played with the dice loaded. As is oft said, politics is a full-contact sport. When impeaching a president, what ultimately matters most, for the long-run stability of a democratic republic, is captured in a famous couplet by the legendary early-20th-century sports columnist, Grantland Rice:
For when the One Great Scorer comes
To mark against your name
He writes — not that you won or lost —
But how you played the Game.
John C. Wohlstetter is author of Sleepwalking With the Bomb (2014).