Facing Up to Resignation or Impeachment

After a year of Watergate revelations, after a year of attacks on the presidency unprecedented in their scope and ferocity, the American people are still undecided about what to do with Richard Nixon. The latest polls indicate a profound disenchantment with the man and a distrust of his motives: only 27% of the public approve of his current performance in office; 67% think that he knew about the Watergate coverup; 59% feel that 18 1/2 minutes of a crucial tape were deliberately erased because they would have proved his involvement in the coverup. A year ago, the idea of impeaching the President was anathema to great numbers of Americans. There remains a nagging reluctance to get rid of him, but the public has moved considerably closer to sanctioning this momentous step. The most recent Gallup poll indicates a 46%-to-46% split on whether Nixon should resign. A total of 37% now favor impeachment and removal from office, while 53% are opposed, some of them on the grounds that it would be "detrimental to the best interests of the nation and further sully our image abroad."

The public irresolution traces, in part, to the vague and frightening aspects of the impeachment process. The impeachment clause of the U.S. Constitution is too ambiguous to be easily employed. It is clear enough that a President can be impeached for treason or bribery, but what is to be made of "other high Crimes and Misdemeanors"? The phrase was a compromise arrived at by the founding fathers after considerable debate, but it was only dimly understood then--or since. Not long after the phrase was incorporated into the U.S. Constitution, the British, who invented it to encompass both criminal acts and behavior that tended to undermine a government's integrity, discarded it. The impeachment provision led an exasperated Tocqueville to complain: "Nothing can be more alarming than the vagueness with which political offenses are described in America."

If anything, that imprecision has increased over the years. In general, historians regard the only previous presidential impeachment, that of Andrew Johnson, to have been ill-advised and unjustified. As such, it set no usable precedents. There is even considerable confusion over the very definition of impeachment. Properly speaking, it refers only to the majority vote of the House and is comparable to a grand jury indictment. But, as commonly misused, the word embraces the whole process of removing a President, up to and Including conviction by two-thirds of the U.S. Senate. Thus, the polls may be somewhat misleading because people do not mean the same thing by the word.

Those who take a restricted view of the Constitution's language on impeachment question whether there is sufficient cause for taking any action against the President at present. They do not deny or underestimate the scope and extent of Watergate crimes, but they would proceed with all due caution. Louis H. Pollak, a Yale law professor, feels that Nixon should not be impeached unless there is evidence of his actual involvement in illegal activities such as the Watergate cover-up or the plumbers' burglary. In other words, the President must be shown to be guilty of a crime. Alexander Bickel, also a Yale law professor, rejects such issues as the impoundment of funds or the secret bombing of Cambodia as proper grounds. By those standards, he argues, "I don't think any of the 37 Presidents would have served out their terms."

This same danger of inconsistency troubles Benno C. Schmidt Jr., professor at Columbia University School of Law. While the President has been charged with some misconduct in office that appears to be unique, other accusations against him--ordering wiretaps, auditing the tax returns of political opponents--have been true of past Presidents as well. "Impeachment should be limited to serious crimes as defined in the general criminal law and beyond that, to only very serious abuses of public office," says Schmidt. "Impeachment and removal can't be haphazard. They should not impeach one President unless they are willing to take the position that any President engaged in the same conduct should be impeached."

Serious advocates of impeachment have no quarrel with Schmidt that the standards being applied to Nixon should be applied with equal force to any President. What they are saying is that Nixon's conduct amounts to so flagrant an abuse of his office that the grounds already exist for impeachment, even under a narrow interpretation of the Constitution.

Few responsible authorities agree with the interpretation of impeachment that was tossed out by Vice President Gerald Ford a few years ago, when, as a Congressman, he was leading the unsuccessful fight to impeach Supreme Court Justice William O. Douglas: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." Nor would many put it as baldly as former Attorney General Richard Kleindienst: "You don't need facts. You don't need evidence. All you need is votes." Both views are so broad as to be formless.

Taking a less broad but still liberal view of the issue, other observers are willing to accept a sizable number of grounds for impeachment. "Start with the proposition that impeachment is a removal process and not a criminal process," says Philip B. Kurland, law professor at the University of Chicago. "If a President spent a term fishing, it wouldn't be criminal; but it would be an abuse of office and he would be subject to removal." Many critics cite James Madison, who argued at the First Congress that a President should be able to remove appointees at will. By exercising that power, said Madison, the President will subject himself to impeachment "if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses." Nobody would quarrel with the fact that Nixon's subordinates were guilty of excesses; even the President has conceded that much. Accordingly, Cornell University Law School Dean Roger C. Cramton maintains that Nixon can be impeached for "neglect of duty. This is one of the oldest historical grounds for impeachment in English history."

The broadest case for impeachment, however, does not rest on any one infraction but on an accumulation of abusive acts. They range from condoning break-ins and burglary to setting up a private police force, from obstructing justice in the case of the Watergate cover-up to attempting to influence the federal judge in the Ellsberg-Pentagon papers case, from misusing public funds for his private residences to taking improper deductions from his income tax. Since Nixon assumed sole responsibility for the White House tapes, he is obliged to provide a satisfactory explanation for the missing 18 1/2 minutes. If he does not, many observers feel that the keystone would be in place for impeachment. "I'm not sure that any one of these alone would stand as grounds for impeachment," says Columbia Law Professor Albert J. Rosenthal. "But cumulatively, they have led to an abuse of office."

Despite the abundance of charges against the President, Congress has moved cautiously, if not laboriously. This squeamishness substantially proves Lord Bryce's point that impeachment is "one of the heaviest artillery in the congressional arsenal, but because it is so heavy it is unfit for ordinary use." Even in these extraordinary times, it may be too cumbersome. Writing in the New York Times last week, Archibald Cox compared the American aversion to impeachment to the British dread of regicide. Just as the beheading of Charles I by Cromwell tore England apart for generations to come, so might the forcible removal of Nixon divide and demoralize America. "I think the country has a deep intuitive understanding that impeachment is extraordinary, radical surgery legitimate only upon some fundamental wrong," wrote Cox. He did not argue that such surgery is not required; his point was that the time has come for the U.S. to bend itself "to the very arduous task of formulating and thus creating a substantive law of impeachment where now there is none."

What of the fear that the impeachment and removal of Nixon would make it more likely that this heavy artillery would be brought into use more and more often? If it is done once, a stern example would be set. For a long time to come, that example would probably discourage any new Watergates. Besides, once every 200 years may not be excessive. Of course, there is always the danger that impeachment will prove too lengthy a process absorbing too much of the national energy while other pressing matters are neglected.

For all the drawbacks of impeachment, some critics put more trust in that remedy than in resignation. The Wall Street Journal has sharply criticized resignation because it would set an "extra-legal precedent" and "poison public life for many years." There is certainly nothing extralegal, however, about a presidential resignation. Article II, Section 1 of the Consti tution clearly provides for removal of a President through "Resignation or Inability to discharge the Powers and Duties" of the office. The 25th Amendment permits the President to resign if he acknowledges that he is "unable to discharge the powers and duties of his office." The real fear among such observers is that future Chief Executives might be hounded from office when enough voters became disenchanted with them.

Harry Truman's rating fell even lower than Nixon's--to 23% --after he fired General Douglas MacArthur and a rash of scandals erupted within his Administration. Should he have been forced out of office? Few would say so today, though many did at the time. Observes Bickel: "Resignation runs counter to the genius of this form of government."

But then so does Watergate--to an alarming degree. An extraordinary scandal deserves an extraordinary response. Serious advocates of resignation do not recommend this solution merely because the President has slumped in the polls; they see it as a last resort for a President who has bent the rules of democracy and broken faith with his fellow countrymen. If he is to depart, resignation would prove a cleaner, swifter weapon than impeachment, one less likely to inflict a lasting injury on the body politic. A voluntary departure would give the country an unwounded President Ford and would leave to the courts and history the exact censure deserved by the Nixon Administration. "Resignation is a prudent, sensible and appropriate course for all concerned," says Cornell's Cramton. He doubts that it would set a precedent, since there was a "criminal conspiracy emanating from the White House. God help us if it happens again." Says Schmidt: "Resignation would take the strain off the system."

If the President is worried about possible indictment once he becomes a private citizen, he could make resignation conditional on immunity from federal prosecution. He could plea-bargain with Special Prosecutor Leon Jaworski, or Congress could try to protect him by passing special legislation. Congressman Wilbur Mills has suggested that he would support such a bill. Nixon, however, would not be immune from state or local prosecution for illegal financial transactions or other possible crimes in Florida or California.

Plainly, all available solutions are fraught with hazards and tragedy. But it would be equally perilous to continue the present situation, with a steady flow of revelations battering away at the national self-esteem and a corrosive cynicism eating away at the foundations of the Government.

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