Monday, August 11, 2014

Get Out Of Here

An odd piece about impeachment by Cass Sunstein on the 40th anniversary of Nixon's resignation. Much of it is a fascinating discussion of how the Founders came up with this punishment for the President.  As with so much of the Constitution, it was a compromise. Some wanted no impeachment, as it would damage the separation of powers.  On the other side, some--though not many--thought the President should essentially serve at the pleasure of Congress.

An early suggestion was the President could be removed due to "malpractice or neglect of duty," but this was thought too vague. Still, the essence remained--the great fear was of corruption, with the President selling out his office, not doing his Constitutional duty.  So we get the famous formulation "Treason, Bribery or other high Crimes and Misdemeanors."

Thus, according to Sunstein, the potential Nixon impeachment--and if he hadn't resigned he was going to be impeached--was just what the Founders envisioned.

[T]he first article of impeachment was based on the Watergate break-in itself -- in particular, Nixon’s unlawful effort to obtain political intelligence from surveillance of the Democratic National Committee. The second article was based on Nixon’s unlawful use of the Federal Bureau of Investigation, the Central Intelligence Agency and the Internal Revenue Service for political purposes “unrelated to national security, the enforcement of laws, or any other lawful function of his office.” Both of these articles were tightly connected to the founders’ concerns about corruption -- in particular, presidential efforts to gain or keep the office by unlawful means.

Nixon's a bit before my time, so I'll take his word for it (though I do know some argue that, corruption-wise, Nixon wasn't that different from someone like LBJ, and his impeachment, as bipartisan as it may seem, was more a case of the Left finally getting the scalp of a guy they'd been going after for some time).

By the way, misusing the IRS is proper grounds for impeachment?  Is Sunstein trying to tell us something?

But what interested me most was how he ended the piece:

In recent decades, prominent people inside and outside Washington have called for impeaching both Republican and Democratic presidents for reasons that fall far short of these grounds. In the case of Bill Clinton, they succeeded. As we remember the painful events of 1974, it's worth honoring the seriousness of the lawmakers’ efforts -- and their impressive fidelity to the Constitution.

So Clinton was impeached for improper reasons.  This is because his high Crimes and Misdemeanors were not related to a corruption of his office, it would seem.  The argument, taken on its own terms, is dubious--it's quite arguable Clinton did what he did to protect his Presidency by preventing the public from knowing the truth, for one thing.

But harder to ignore is that he appears to have committed felonies while in office.  Did the Founders not care about such crimes, because they weren't about corrupting the system?  So Clinton, or any President, can go out on a spree and stab someone, or rape someone, and we just shrug and say we'll worry about this after he's out of office--or better yet, throw him in a cell from where he'll run the country, perhaps even campaign for a second term. It seems to me that there should be a presumption that any felony committed while in office is grounds for impeachment.

And let me ask Cass something, as unfair as this sort of argument is. Think back to the 80s.  Reagan's in office and you're a young hotshot professor.  And someone asks you "if it's discovered the President has committed perjury and obstruction of justice during his tenure, is that impeachable?"  Do you honestly think you'd ask back "what kind of perjury and obstruction of justice are we talking about?"

7 Comments:

Blogger ColumbusGuy said...

You can be assured, Cass would have found it the most serious kind of perjury and obstruction of justice. It's too bad law professors don't generally get biographical treatment. "Tiresome" would be a good title for Cass's.

3:35 AM, August 11, 2014  
Anonymous Anonymous said...

The attack on Nixon was hardly an affair of "the Left" whatever that is. Nixon's IRS wasn't going after tax cheats

4:01 AM, August 11, 2014  
Blogger LAGuy said...

Anon: Regarding your first sentence, there's no question the Left had hated Nixon since his rise. Nixon was paranoid, but that didn't mean they weren't after him. The only question here is did they take advantage of an opportunity in ways they wouldn't have for someone they liked.

Regarding your second sentence, let's recall Nixon used (or at least tried to use) the IRS politically the same way any politician does--identify your enemies and try to discover if they're tax cheats. (Though, admittedly, in the present fight over the Tea Party, it's more a case of trying to define them as tax cheats regardless of the evidence.)

10:12 AM, August 11, 2014  
Blogger LAGuy said...

ColumbusGuy: My point about asking Sunstein questions about impeachment in the 80s wasn't about an animus towards Reagan so much as a rethinking that may have occurred due to Clinton. In the BC years, I bet most people just assumed that a President who committed felonies while in office would have to go.

11:03 AM, August 11, 2014  
Blogger ColumbusGuy said...

Didn't Sunstein work in Reagan's DOJ? Not that that has much to do with animus, I suppose. Could go either way.

But I don't think his animus (or his affinity) is to any particular president or person.

5:29 PM, August 11, 2014  
Anonymous Bill/w said...

I'm no lawyer, but I read Sirica's book on Watergate. The gist of it was that he and the Justice Dept. took Nixon and the White House's arguments about National Security seriously and felt betrayed that all of those arguments were bullshit. They were simply trying to hide all of their misdeeds. He felt they wasted a good deal of time and effort debating the national security risks of forcing release of the infamous tapes. When they finally got them they discovered there were no national security issues at risk at all.

8:59 AM, August 14, 2014  
Blogger LAGuy said...

There's always been a question as to why didn't Nixon destroy the tapes. Some guess he just wasn't aware of how incriminating they were. Others say he did it out on honor (honestly)--that the tapes were important historical documents that had to be protected. Other says--and this makes sense, though I have no idea if it's true--the J. Edgar Hoover had copies of the tapes so destroying his own copies would have just made things worse.

Anyway, I'm pretty sure after seeing what happened to Nixon, that no President would allow any tapes made from now on except when they want to be on the record.

11:16 AM, August 15, 2014  

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