The Proper Grounds for Impeachment

IMPEACHMENT. Rarely has a word stirred such passions or borne such grave implications for the future governance of the U.S. And rarely has a word been given such a latitude of meaning. On the broad side, there is the interpretation offered in 1970 (and since qualified) by Vice President Gerald Ford when he was the leader among 110 Congressmen trying 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." On the narrow side, there is the argument that a President can be impeached and removed only for an indictable criminal offense.

These are the poles, but if an impeachment is to have any validity, it must surely be based on a middle ground between them. This week the lawyers for the House Judiciary Committee are scheduled to issue their opinion on what offenses are impeachable. Precisely how the report is phrased may have a great deal to do with whether the House votes to impeach President Nixon. And though the point may be heatedly debated, if history and precedent are to be the guides, it is unlikely that the Judiciary Committee's lawyers will find that the President can be impeached only for clear-cut criminal offenses. Most authorities now agree that impeachment is basically a political process, though one still closely responsive to legal precedents.

The founding fathers thought impeachment to be a "heroic medicine, an extreme remedy," as Lord Bryce later called it. They were not looking for a weapon to punish small transgressions. But what should be done if, as Benjamin Franklin asked during the Constitutional Convention, a President "rendered himself obnoxious"? To Alexander Hamilton, the most persuasive apostle of a strong Chief Executive, impeachment was the answer--the ultimate device for checking power in a democracy. In Hamilton's words, it was "a method of National Inquest into the conduct of public men," to be conducted by "the inquisitors for the nation" in Congress.

Treason and bribery, it was readily agreed during the debate on the Constitution, would be obvious grounds for impeaching a President. What else? "Abusing his power," Edmund Randolph of Virginia suggested. James Madison favored protection against "incapacity, negligence or perfidy in the chief magistrate." But when George Mason proposed adding "maladministration" to treason and bribery, Madison thought the word "so vague as to be equivalent to a tenure during the pleasure of the Senate." Borrowing a catchall phrase from English usage, Mason thereupon substituted "high crimes and misdemeanors." Without debate, this curious phrase, which has bedeviled political discourse ever since, became part of the Constitution.

The phrase may be vague, but it is not meaningless and has a long history behind it. The English Parliament, struggling through the centuries against arbitrary Kings (who were, of course, immune from impeachment), used the charge to get at unsatisfactory advisers for offenses both criminal and noncriminal; significantly, the phrase high crimes and misdemeanors does not derive from normal English criminal law. Thus, Parliament impeached various magistrates for misleading their Sovereign, a Lord Chancellor for putting the seal of trust to an ignominious treaty, an admiral for neglecting the safeguard of the sea, and others for appointing bad men to office, taking bribes, purchasing jobs, subverting the fundamental laws, delaying justice. When the Americans adopted the impeachment process, they made it plain that impeachment was designed to cleanse an office, and not to impose punishment. Impeachment, wrote Justice Joseph Story in a famous commentary, is "a proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross official misdemeanors." Charles Evans Hughes, writing in 1928, agreed that "according to the weight of opinion, impeachable offenses include, not merely acts that are indictable, but serious misbehavior." The Association of the Bar of the City of New York, in a cogent committee study issued last month, is the latest to conclude that "acts that undermine the integrity of government are appropriate grounds whether or not they happen to constitute offenses under the general criminal law."

Special Prosecutor Leon Jaworski and his grand juries are about to return indictments against some of Nixon's key aides. But the "inquisitors for the nation" are free to judge by broader standards. No doubt about it, the inquisitors are not keen about their task. Most politicians hesitate to get too far out in front of the public; yet the public, disquietingly, seems to be expecting Congressmen to use their own best judgment.

Congressmen are aware that, in the latest measurement by Louis Harris, they rate lower in public approval than the President himself. If impeachment is primarily a political act, the prospect can only distress those who worry about the low es tate of politics these days. Of course, low politics is undeniably present, with some adamantly for or against impeach ment for partisan reasons. But the majority of Representatives are now waiting for the framing of the charges by Attorneys John Doar and Albert Jenner, majority and minority counsel respectively, to the Judiciary Committee. Just as there are high crimes and misdemeanors, there is a high politics too.

By its standards in the weeks ahead, Congress as well as the presidency will be tested.

Former Attorney General Richard Kleindienst, in a vari ation on the Ford formulation, once cynically defined the politics of impeachment: "You don't need facts. You don't need evidence. All you need is votes." Nixon must hope that Congress will not take the advice of his former chief legal officer.

Politics of that kind was very much involved in the nation's one previous attempt to impeach a President, and the sorry case against Andrew Johnson has given impeachment a bad name for a century since. The principal charge against Johnson was his defiance of an act of Congress that was later declared unconstitutional.

Clearly, a lot more misconduct than this can be adduced against Nixon, even with the wider latitude now given to Presidents. But it is only fair to note that dubious behavior by other recent Presidents did not lead to their impeachment. The New York City Bar argues that Congress should impeach Nixon "only if it would be prepared to take the same action against any President who engaged in comparable conduct in similar circumstances." The issue is not how good a President Nixon has been, or how popular he is, or whether he has had foreign policy successes or economic failures. The issue is whether he has been guilty of misconduct in office that jeopardized the integrity of government and whether he persists in conduct detrimental to good government.

A number of attempts have been made to frame impeachment charges against Nixon.

The American Civil Liberties Union makes eleven charges; the AFL-CIO lists 19, and a public-interest law group, concentrating solely on criminal charges, lists "28 violations of law" committed by the President "or by persons answerable to him." Some of these lists give the impression of piling on charges, so that if one does not stick, another will. There are four mam categories to consider, of which the last two are the more compelling:

PERSONAL ENRICHMENT.

This category includes questionable deductions on the President's income taxes and the use of public funds to improve his private estates at Key Biscayne and San Clemente. On these issues, the judgment of former Watergate Prosecutor Archibald Cox is probably about right:

"Morally shabby? I think so ... Grounds for impeachment? I wonder."

THE SECRET BOMBING OF CAMBODIA. In ordering more than 3,600 bombing sorties against neutral Cambodia in 1969 and 1970, the President involved the Air Force in persistent falsifying of the records, deceived Congress and the public, and ignored federal statutes requiring congressional approval of such acts. All recent Presidents have unilaterally taken warlike actions, and Congress, which has the war-making power, has been lax in making its own weight felt. With its own fumbling record, it would not be a good judge of its own case.

MISUSE OF POWER. Here the case against Nixon takes on specificity. Among the charges: 1) establishing within the White House an irregular personal secret police (the plumbers) that engaged in such criminal acts as burglary, illegal wiretaps, espionage and perjury; 2) personal approval of a plan (later vetoed by J. Edgar Hoover) authorizing illegal domestic political surveillance, military spying on civilians, mail covers and espionage against dissenters, political opponents, journalists and federal employees; 3) the dangling of a high federal post to the judge in the Ellsberg-Pentagon papers trial; and 4) the attempted use of FBI investigations, income tax audits by the Internal Revenue Service and other threats to harass political "enemies." The list is long, disturbing and familiar, and the conduct hard to condone.

How deep must the President's own involvement be shown to be? Madison argued that as long as a President has the right to fire his assistants--which no authorities dispute--this would make him "responsible for their conduct and subject him to impeachment himself, 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." Joseph Califano, who was Lyndon Johnson's special assistant for domestic affairs, says that though Presidents are often described as having more statesmanlike affairs constantly on their minds, they pay the closest attention to matters affecting their political survival. Nonetheless, Nixon's defenders would prefer to see him judged to have been negligent in superintending his subordinates than to have had "guilty knowledge" of what they were up to. Columbia University Law Professor Benno Schmidt agrees that one "should not necessarily attribute to him each and every act of his subordinates." But Schmidt adds: "When there is a pattern of subordinate misconduct, you must look to the President's failure to supervise and control their conduct." Some authorities think that the cumulative evidence of abuse of office might be decisive.

COVER-UPS. The President has a constitutional duty to see that the laws are faithfully executed. "Is it an impeachable violation of this responsibility," Cox asked recently, "to refrain for months from any form of personal intervention when there is, first, suspicion and later at least some evidence that his highest personal aides and party officials are obstructing justice by covering up criminal misconduct, for him to withhold disclosure and refuse evidence . . . and for his aides, apparently with his ap proval, to cooperate with those seeking to avoid indictment and conviction?"

Noting that it is "misprision of felony" to fail to report a crime, Connecticut's Republican Senator Lowell Weicker points out that the President, even by his own admission, knew about Watergate crimes on March 21, 1973, and asks: "Which judge or law-enforcement official did you contact?" Moreover, once it became clear that presidential tapes might well establish Nixon's ignorance or knowledge of Watergate, and once the President formally accepted "sole personal control" for the preservation of this evidence, how is one to account for the 18% missing min utes on one crucial tape, or the fact that six court-appointed experts declared in effect that this segment could not have been erased accidentally?

In Watergate cases involving criminal charges, judgment on many individuals will eventually be delivered in the nation's courts. But what of those offenses that, in Hamilton's words, "proceed . . . from the abuse or violation of some public trust [and] are of a nature which may with peculiar propriety be denoted political, as they relate chiefly to injuries done immediately to the society itself?" The emphasis is Hamilton's, and there is no doubt whatever that, in his view, impeachment of a President is the appropriate remedy for political offenses, indictable or not.

In the inquest that is now opening, the House must frame its inquiry, take evidence, admit couriterevidence by the President and the President's men, and come to its decision. If the vote is to impeach (and if the President has not resigned by then), it will become the Senate's job to try him. It will not be a comfortable process. It was not meant to be. But if it is car ried out fairly, it may be the necessary-- indeed the only -- way to restore confidence in the rule of law.

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