So, Nancy Pelosi got spooked by rumors about a suppressed whistleblower complaint and may have jumped the gun, announcing the beginning of an equally undefined impeachment investigation by six House committees. Talk about a shotgun response!
The real issue, at least for political junkies with a sense of history, is whether or not this will turn out to be an “action-forcing event” equivalent to Nixon’s Saturday Night Massacre (or even to revelations about Bill Clinton’s affair with Monica Lewinsky).
On the surface, the impeachment investigations of Nixon and Trump are quite similar. In each case, the president was already under immense pressure, with a partisan media in full pursuit. When each story broke, there was dominating, explosive coverage — with every talking head predicting imminent disaster — that goaded the Congress into taking immediate, forceful action. Of course, with Nixon in particular, the stories seemed to pan out. As things now stand, that does not appear to be the case with Trump.
First, the Saturday Night Massacre, in which President Nixon ordered the firing of Special Prosecutor Archibald Cox, triggering resignations of his attorney general and deputy attorney general, who were unwilling to carry out his orders. Robert Bork, as solicitor general the third in line at the Department of Justice, did carry out the president’s order — forever ruining any chance of his being confirmed as an associate justice on the Supreme Court.
The media reacted as one, describing the action as a totalitarian coup by a president eager to stop investigation of his own wrongdoing. The outcome was characterized by Alexander Haig, Nixon’s chief of staff, as a “firestorm of protest” over Columbus Day weekend, causing Nixon to reverse course entirely and agree not only to turn over the first batch of White House tapes but also to maintain the Watergate Special Prosecution Force (WSPF) as an independent entity under a newly recruited special prosecutor.
As it developed, Nixon may not have been entirely at fault. While there are certainly other versions, the most interesting back story is found in Al Haig’s later memoirs, Inner Circles (1992), in which he admits to having assured the president that Attorney General Elliot Richardson was prepared to fire Cox if he didn’t agree to the Stennis Compromise. The fight was over access to the White House tapes, which Cox had subpoenaed — and the legal battle was between the confidentiality of Oval Office conversations versus access to possible evidence of criminal conduct.
With the outcome uncertain, a possible compromise, suggested by Cox himself, was some version of “third party authentication”: a respected, independent reviewer would compare White House-prepared written tape transcripts with the actual recordings and certify the transcripts as being true and correct. The approach might satisfy both sides: the tapes themselves would remain confidential, but their transcripts would enable the special prosecutor to know what had actually been said. The White House initially had rejected Cox’s suggestion, but it was re-raised after the D.C. Circuit had ruled the tapes themselves had to be turned over.
The difficulty was that they picked Sen. John Stennis of Mississippi as the independent authenticator. Stennis was easily among the Senate’s most respected members — and a man of towering integrity. But at 73, he was both quite elderly and still recovering from being shot during a robbery attempt.
Shortly after the Stennis Compromise was officially announced on October 19, 1973, Cox indicated his disinclination to go along — and Richardson, in spite of what Haig claimed were his assurances that he was prepared to dismiss Cox, chose to resign instead. Cox was fired on October 20, and the White House’s reversal the following week hardly calmed things down. On Tuesday, October 23, a landslide of resolutions calling for Nixon’s impeachment, launching an impeachment investigation or appointing a special prosecutor were introduced. On October 30, the House Judiciary Committee (HJC) formally undertook its investigation. The vote to do so was strictly along party lines: 21-17.
The formal House vote did not occur until just over three months later, February 6, 1974, giving formal authority for the HJC to launch an impeachment inquiry. By this time, there was a huge bipartisan consensus: the vote was 410-4.
The most interesting “insider’s” description of what went down during HJC Chairman Peter Rodino’s impeachment inquiry comes from a book written by its long-time majority counsel, Jerry Zeifman: Without Honor: Crimes of Camelot and the Impeachment of President Nixon (1995). In reading Zeifman, however, it is important to appreciate the somewhat different circumstances. Zeifman hated Richard Nixon with a passion and thought he ought to be impeached forthwith. He chafed under the slowed pace of Sen. Ted Kennedy’s allies, who felt (no doubt correctly) that stretching out HJC’s Nixon investigation would not only savage other Republican officeholders but also facilitate Sen. Kennedy’s expected 1976 run for president.
Thus, Zeifman is highly critical of Special Counsel John Doar, who had been specifically recruited to run the investigation and who, according to Zeifman, was taking direction from Yale Professor Burke Marshall, Doar’s former boss in the Kennedy administration’s Civil Rights Division at the Department of Justice — and said to be EMK’s attorney general in waiting. Marshall’s views and suggestions were conveyed through his protégé, Hillary Rodham, whom he had arranged for Doar to hire on to his impeachment inquiry staff.
It is instructive to review their timetable. The HJC began its impeachment inquiry on October 30, 1972, but the committee didn’t get around to hiring Doar until December 20, following a two-month search. While he assembled an investigatory team of some 45 lawyers, most of them were relegated to the job of assembling press clippings from stories that were critical of the Nixon administration. Ultimately, these totaled 36 notebooks of material. Amazingly, Doar’s inquiry staff undertook no investigation of its own: no witnesses were interviewed, no evidence was gathered. Instead, their intent from the very outset was to rely on pre-existing investigations by other congressional committees, most notably the Senate Select Committee on Presidential Campaign Activities (the Ervin Committee). That Committee, as Zeifman points out, was specifically prohibited by its charter from investigating President Nixon himself — so Doar’s impeachment inquiry — after months of supposed effort — had nothing to show for its efforts.
Indeed, the committee did not issue its own subpoena for White House tapes until April 11, 1974, some nine months after their existence become known. (The courts declined to enforce this subpoena in any event, due to the “separation of powers” structure of our Constitution).
A second $1 million was appropriated, but staff activity was kept so confidential that even committee members themselves were unaware of the lack of any real investigation. Once the infamous “Road Map” was forwarded by the Watergate grand jury on March 1, 1974 (and Nixon named an unindicted co-conspirator in the cover-up), Doar was forced to act — which is why he so quickly welcomed the work done by the Watergate Special Prosecution Force. Significantly, even the Road Map itself was held so closely that only the chairman and ranking member, along with two staffers, had access to the full document.
Thus, it was not until May 11, 1974, that Doar relented and the committee undertook six weeks of closed-door hearings to receive actual evidence. Even then, it was not until July 2 that the committee began hearing from its first of 11 live witnesses (which included Alex Butterfield, John Dean, Fred LaRue and John Mitchell). Televised live debates by committee members, preceding their actual votes on the Articles of Impeachment, began on July 24 — definitely a slow-moving train.
Zeifman singled out for special distain both Hillary Rodham and her supervisor Bernie Nussbaum (who later became counsel to the president under Bill Clinton but was forced to resign over alleged ethical violations). Zeifman says Rodham wrote a memo concluding that President Nixon could not be represented by counsel during the committee’s impeachment investigations. While actually given serious consideration, this assertion was particularly difficult to maintain since counsel was allowed to participate in 1970, when Republicans were attempting to impeach Supreme Court Justice William Douglas.
The end result, in spite of Hillary’s efforts, was that when witnesses were called to testify, they were subject to cross-examination by Nixon’s own legal team, led by Boston trial lawyer James St. Clair.
In the end, on July 30, HJC members recommended the last of three Articles of Impeachment to the full House, while rejecting two others proposed by the impeachment inquiry staff. The committee’s formal impeachment process had taken a full eight months. One could argue that it took that long, even with extensive (and hugely negative) media coverage, to move public opinion toward acceptance of undoing Nixon’s sweeping 1972 reelection victory.
Now, let’s compare that timetable to what may lie ahead for Pelosi’s House of Representatives. While Jerry Nadler’s HJC claims to have been conducting an investigation to determine whether or not there should be an impeachment inquiry, Pelosi’s September 25 announcement is really the starting gun. Interestingly, however, she not only did not ask for a House vote but also muddied the water by saying she was relying on six committee chairmen to conduct the inquiry. There is little talk, at least at this point, of any appropriation or the hiring of any specifically tasked staff. Whether or not this is a back-handed way of throwing Nadler, whose HJC leadership has not been stellar, under the bus, Pelosi’s announced approach may turn out to be like a six-ring circus: lots of individual acts, but no single, consistent story.
Keep one other key difference in mind: In 1974, Nixon was already a lame-duck president, so any impeachment delay was seen as detrimental to the GOP. Today, Trump is not only running for reelection but many also feel he has a very good chance of winning — such that delay is not necessarily beneficial, and certainly not to members of Congress from districts that Trump is expected to carry in 2020.
It is little wonder there are stark differences among Democrats on whether or not to proceed with any form of impeachment investigation. And, once launched, any perceived delay is not at all likely to help build support for Trump’s impeachment — not after all the highly negative, but ineffective, coverage Trump has received to date.
Can Nadler ever catch up? His Judiciary Committee is, after all, the historically correct one to conduct such an inquiry. While it would be easy for him to get authorization, he’d then have to launch an inquiry, which might well entail hiring additional staff and holding focused hearings. Cross-examination of witnesses by committee staff would be far more serious than that done to date by committee members, but Nadler would then have to face the question of whether or not Trump’s lawyers get to participate, too. Here, the Nixon precedents are clearly in favor of their inclusion.
In the end, Nadler is also going to have to present a formal case for impeachment. Given all that we have been through so far, the American public is not going to stand for a handful of progressive law professors expressing their considered judgment that Trump has, indeed, engaged in “unpresidential conduct” or committed an obstruction of justice. No, it is going to require a whole lot more evidence than that — all being presented by witnesses under oath and subject to cross-examination by counsel for the president.
This much seems true: time and the tide of public opinion are simply not on Pelosi’s side, and her six-committee approach will confuse rather than educate. Ultimately, she’s going to have to circle back to Nadler, and this is just not his moment for glory. While primarily motivated by his own intense focus on April 28, 2020, the date of New York’s primary election (where Nadler faces a progressive challenge from the left), the American public is not waiting with bated breath for his committee to get going, especially when there is no likelihood of any Senate conviction.
Instead, the public is already focused on the 2020 presidential race. Most telling, no Democrat candidate is calling for Nadler’s committee to impeach Donald Trump. Their entire pitch is that they (and they alone) are the ideal candidate to beat Trump at the ballot box next November.
Geoff Shepard came to D.C. as a White House Fellow right after graduation from Harvard Law School and spent five years on Nixon’s White House staff, including being deputy counsel on his Watergate defense team. See more on his website: www.geoffshepard.com.