The Federal Communications Commission (FCC) instituted its Fairness Doctrine in 1949, requiring that broadcasters, in order to keep their licenses, both present controversial issues of public importance and do so in a manner that — in the FCC’s view — was honest, equitable, and balanced. The policy was eliminated some 40 years later as unworkable.
Today, we have a new fairness doctrine, although an unofficial and largely unstated one.
By far the most important impeachment issue is the overarching importance of perceptions of fairness. All members of the House will have to face their voters next November — there’s no postponing that election — and will need to justify their impeachment vote. This is not as easy as it sounds, even in safe districts, because of the fundamental American belief in fair play. However it is phrased and in whatever context it is considered, the underlying challenge for members is being able to assure their constituents back home that Trump was or was not treated in a fair manner.
Thus, such seemingly critical issues as whether hearings are open or closed, whether or not staff counsel get to pose questions, whether or not Trump’s lawyers get to participate, what constitutes an impeachable offense, whether or not members vote in secret, and whether the impeachment process plays out over a long or short period of time have to be considered in the context of an amorphous fairness doctrine, calculations regarding which can shift dramatically on a daily basis.
Republicans seem to be winning this battle for now, as Democrats ramrod their process through as quickly as possible. Let us examine their actions in the context of several surprising developments from the Watergate era, most of which were not even well known, understood, or appreciated at the time.
1. House Judiciary Committee (HJC) Hearings. HJC Chairman Peter Rodino (D-N.J.) and its lead counsel, John Doar, originally planned to have their committee accept reports from other congressional investigations (principally the Senate Ervin Committee, which had held extensive public hearings that had been hugely damaging to Nixon and his senior aides), but to call no live witnesses of its own — which would have had the byproduct of precluding any presidential participation. This is the same way Speaker Pelosi started out, but Rodino’s HJC members ultimately rolled their own chairman, citing the overwhelming need to justify the committee’s approach to their constituents back home. Thus, during July 1974, 10 witnesses testified in closed session, with Nixon’s counsel, James St. Clair, being allowed not only to cross-examine but also to select six of the 10 witnesses who were called.
Nadler’s HJC has made no such accommodations — or even attempted them.
2. Democrats’ Political Interests Differed Remarkably. Rodino’s HJC was made up of 21 Democrats and 17 Republicans. The Democratic majority was divided between the “fire-eaters,” who wanted to proceed full speed ahead with Nixon’s impeachment, and a more moderate group that saw benefits in a slower process, one that could sway public opinion and perhaps attract Republican support. These positions no doubt reflected the perceptions of their respective constituents. Those from safer districts felt comfortable in moving faster; others not so much.
Still, while House leadership approved Rodino’s announcement of an impeachment inquiry on October 22, 1973, following Nixon’s firing of the original special prosecutor, Archibald Cox, the full House did not formally grant HJC subpoena authority until February 6, over three months later. For better or worse, the committee got off to a slow start.
While Doar ultimately hired some 45 lawyers, committee staff did not undertake any independent investigation of their own. Instead, they busied themselves in assembling some 36 notebooks, consisting largely of press clippings covering the many allegations that had been made about Nixon and his administration.
It was not until Doar began laboriously reading from these notebooks in June that committee members began to fear their staff didn’t have a clear and convincing case against Nixon — at least, not one that could be easily understood and appreciated by the public.
Similar concerns seem to be playing out today, but with Speaker Pelosi and Nadler’s HJC coming down on the side of a quick and dirty impeachment process — regardless of fairness perceptions.
3. Staffing the HJC. In the end, it was prosecutors from the Watergate Special Prosecution Force (WSPF) who provided all of the substantive staffing. Their “Road Map,” transmitted in March, outlined WSPF prosecutors’ beliefs of Nixon’s impeachable actions, including supportive grand jury testimony.
When even that effort proved insufficient, they prepared a 128-page prosecutive memo detailing their case against President Nixon and secretly shared it with HJC staff in early July.
Indeed, here are Bob Woodward’s typed notes from his interview with Leon Jaworski, shortly after Jaworski had resigned as special prosecutor:
Most important “focus” in his view was working out arrangement to get material to House Judiciary. HJC was “very slow” getting started, he sez, and would never have gotten off the ground without info provided by SPO [Special Prosecutor’s Office]. It was “a roadmap,” he stressed more than a few times.
Sez HJC “had a very difficult time getting underway,” that Doar admitted it to him. Doar “an excellent man, there. Still, he had nothing to catch hold of. He was engulfed by the Watergate Committee material,” but it was badly organized and not nearly definitive enough.
“What we did — the first real step — was to cast the die.”
Perhaps members of Mueller’s team are doing something of the same thing. Andrew Weissmann is now appearing on NBC, publicly giving advice as to how he would approach Trump’s impeachment. It’s not being done in secret, at least that we know of, but it might be having the same effect.
WSPF staffing for HJC, in contrast, was done in complete secrecy, so the public was not aware of their extensive involvement.
4. Shifting Definition of an Impeachable Offense. The Constitution is a tad vague on what constitutes an impeachable offense, using the words “treason, bribery, or other high crimes and misdemeanors.” There are lots of lawyers and historians presenting views today on what does or does not come within these words — but Congressman Gerald Ford’s statement of many years ago still holds true:
[A]n impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.
Yet, in the last analysis, it must also comport with beliefs of American voters.
There were two interesting developments during Rodino’s HJC deliberations. First, to the surprise of many, Doar argued that it was legally impossible for a president to conspire with members of his own staff, thereby precluding use of a conspiracy charge as the basis for an impeachable offense. Second, St. Clair argued the committee had to find that Nixon personally had committed a real crime. Neither argument was definitive, but both were persuasive to committee members — no doubt ever mindful of the inchoate fairness doctrine.
It is fascinating to watch this same debate play out today. What begin as the charge that Trump had threatened to withhold U.S. military aid if Ukraine’s newly elected president did not investigate Joe and Hunter Biden became termed the “quid pro quo.” It turned out that this Latin phrase was not only foreign to most Americans, but the supposed offense was also difficult to explain in simple terms. Then, apparently in response to focus-group testing, Democrats began uniformly to use the term “bribery.” But even that didn’t last long. What ultimately got adopted were charges of “abuse of power” and “obstruction of Congress,” neither explicitly enumerated in the Constitution.
The lingering question is whether the American public understands these concepts — or even cares just what they mean.
5. Suppression of a Comparative Study. In responding to the multitude of assertions that Nixon’s actions constituted abuses of power, his HJC defenders requested a comparison of any similar charges brought against his predecessors — a comparative analysis, if you will. Again, it was grounded in the simple idea of fairness: Was he about to be impeached for actions not dramatically dissimilar from those undertaken by his predecessors?
Interestingly, such a study was secretly undertaken, headed by Yale history professor C. Vann Woodward. When received, however, it was much more helpful to Nixon than had been anticipated. Indeed, it showed tensions between the legislative and executive branches stretched back to the nation’s founding. As a consequence, the study was suppressed by HJC staff and never shared with committee members themselves.
The only reason we know about it at all is that the professors, no doubt proud of their research, published it in book form — but only after Nixon had resigned. You can even purchase a copy today, if you’d like.
Just imagine what an uproar there might have been, if this study (as well as its suppression) had become public during HJC impeachment deliberations. We already saw how Nadler denied any HJC exploration into actions by former Vice President Biden. The same sort of reaction might well accompany the discovery of any similar suppression of evidence, particularly those involving the so-called “whistleblower,” by Democrats running the Trump impeachment process.
6. Importance of Grand Jury Information. Grand jury investigations of criminal conduct are conducted in total secrecy, with targets forbidden to have counsel present, to cross-examine accusatory witnesses, or to produce witnesses of their own. It’s such a one-sided procedure that there are strict rules on the secrecy of grand jury proceedings. But even if no indictments follow, elicited testimony can be very damaging to those investigated. It is little wonder that congressional committees show an intense interest in gaining access to such raw and unchallenged testimony.
This issue is unfolding again, but in slightly different fashion. In Watergate, the special prosecutors had grand jurors adopt a report, containing otherwise secret grand jury testimony, which they asked to be transmitted to Rodino’s HJC. Nicknamed the “Road Map,” it supposedly led to Nixon’s impeachment. Its transmittal was approved by Chief Judge John Sirica and upheld on appeal.
Today, we’re watching something of the reverse, where Nadler’s HJC has come into court to demand the otherwise secret grand jury testimony cited in the report submitted to the Department of Justice at the conclusion of the two-year investigation by special prosecutor Robert Mueller. Recently, Chief Judge Beryl Howell upheld their subpoena, finding that HJC’s demand was in the nature of a judicial inquiry and thus within an exception to the statute forbidding release of grand jury information. Her decision has been appealed, but it may well be rendered moot by HJC actions in moving forward with its “Obstruction of Congress” article.
The unspoken difference in this particular battle is that it is difficult to frame in terms of fairness. The outcome might be huge, but the legal issues involved are too complex for a simplified fairness analysis.
7. Access to the Infamous White House Tapes. Nixon’s demise revolved around his secret taping system, and the battle over access to those tapes dominated the impeachment process. Even today, people misunderstand the issues involved. Both the grand jury and the Senate Ervin Committee issued subpoenas the very week the system became known, but only the grand jury prevailed. The Ervin Committee’s efforts (Senate Select Committee v. Nixon) were uniformly rejected by District and Circuit Courts on the basis of the “separation of powers” construction of our Constitution. The grand jury and the special prosecutor, in contrast, prevailed before the District, Circuit, and Supreme Court on the basis of having justified the need for that evidence in the course of a criminal investigation.
For their part, both Rodino’s and Nadler’s HJCs didn’t even try to convince a court to enforce their subpoenas concerning presidential conversations. Instead, both based articles of impeachment on respective president’s non-compliance.
It should be noted here that the assertions by many commentators, including in Tom Brokaw’s recent book The Fall of Richard Nixon, that the Supreme Court’s ruling in U.S. v. Nixon gave Congress a right to Nixon’s tapes, are in complete error. Congress was not even a party to the suit; the issue was access by the special prosecutor in investigating a criminal case.
8. Number and Nature of Articles of Impeachment. Contrary to popular understanding, Rodino’s HJC adopted only three of the five articles of impeachment recommended by its staff. In addition, there was lots of wrangling over the specific wording of each article. In the end, the committee held 19 formal impeachment votes, with the following outcomes:
I. Obstruction of Justice in the Watergate coverup, adopted 27-11.
II. Abuse of Presidential Powers, specifically including Misuse of the IRS, the Watergate Cover-up, Misuse of the FBI, and use of the Plumbers Unit, adopted 28-10.
III. Contempt of Congress in refusing to comply with committee’s subpoenas, adopted 21-17.
IV. Cambodian Bombing, failed 12-26.
V. Income Tax Evasion, failed 12-26.
It is not clear from the internal debates, but by the time the third article was under consideration, support was dropping off — such that adoption of the last two might have diminished considerably, due to the appearance of “piling on.”
With Nadler’s HJC, the approach was pre-wired, with agreement on two articles, even in advance of any witness testimony.
9. Lasting Impact of the HJC Impeachment Inquiry Report. While Nixon’s resignation halted the House impeachment proceedings, the committee still issued a 523-page report (H. Rept. 93-1305), consisting of 223 pages to the majority views, including a statement of the committee’s findings and the evidence supporting them. The remainder was devoted to individual, supplemental, and minority views.
The report was “accepted” on August 20 by a vote of 412-3, but only after the GOP minority insisted on emphasizing that the report was “received and filed and in no way approved” by the full House.
The battle over the propriety and perceptions of what had led to the first presidential resignation in the nation’s history had already begun!
Nadler’s HJC issued its Impeachment Report on December 16, less than a week following its party-line adoption of two Articles of Impeachment against Trump. While 653 pages in length, it was clearly a rush job. Its Title Page states that it includes Dissenting Views, which its Table of Contents indicates can be found at page 181, with the Appendix beginning on the very next page. The pages numbers are completely wrong and no dissenting views are included — at least not in the posted internet version.
What seems to come through loud and clear, both then and now, is that positioning on all of these events consistently harkens back to fundamental concepts of fairness — and to how that will play out in the next election — and those considerations remain paramount in every member’s calculations. Little has changed in the past four decades, and American voters had best keep this in mind.
Messy? Yes, but it is just as the Founding Fathers would have wanted.
Geoff Shepard came to Washington in 1969 as a White House Fellow, right after graduating from Harvard Law School. He stayed for five years on Nixon’s Domestic Council and also served as deputy counsel on his Watergate defense team. He has written two books on Watergate. Learn more from his website: www.geoffshepard.com.
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