The Great Cases: United States v. Nixon

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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33 Responses

  1. Avatar Chip Daniels
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    says:

    Terrific post, Burt. Its good to see the timeline laid out in a condensed narrative this way.

    I remember, as a precocious 12 year old, reading and watching it as it developed, and the main overriding theme was how sprawling and complex it was, like some epic novel with dozens of characters and side plots and backstories and irrelevant asides.

    Watergate hovered over everything, from Johnny Carson’s nighttime monologue to Laugh In routines to sitcoms. When the Arab Oil Embargo hit in 1973, a common folk wisdom was that it was all a conspiracy to take the public’s mind off of Watergate.

    And like today, it inevitably got tangled up in every partisan and culture war battle. But underneath all the circus and sideshows and carnival barkers outside the tent, there was as you note here, very real and historic things working themselves out.Report

  2. Avatar Doctor Jay
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    I graduated from high school two months before Nixon resigned. I sort of became a junkie, reading several books about it and written by former defendants.

    One small footnote. While the Democrats may not have needed a lot of help to make a mess of their primary, they got it anyway. There was a lot of ratfscking of early frontrunner Edmund Muskie’s campaign. I remember a big spread in Time magazine about this that showed an insulting letter sent on Muskie’s letterhead to many prominent Democrats. It was fake. There was also a photograph of Roger Stone, and an account of his shenanigans with the College Republicans and a description of the word “ratfscking”. Yeah, that Roger Stone. These days I wonder if he wasn’t just promoting himself and grifting.Report

    • Avatar Burt Likko in reply to Doctor Jay
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      In researching the post, I spent some time going down the rabbit hole of the 1972 Democratic primary, and “ratfscking” is a really good way to describe what got done to Muskie. It’s worth noting that Muskie and then Humphrey were the preferred candidates of most mainstream Democrats; through the smears on Muskie and what may have been chicanery in the California primary, Nixon got his choice of opponent in McGovern.

      Brevity’s relentless pressures keeping this post below book length impelled me to dramatically abbreviate all that fascinating stuff. But if there’s one thing I kept saying to myself as I did research and review, it was “This sounds SO familiar.”Report

      • Avatar Doctor Jay in reply to Burt Likko
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        says:

        Fair enough. Nixon has cast a very long shadow over our politics. So many key players in Republican conservativedom got their start with him, from Roger Ailes to Roger Stone, to Dick Cheney, to Phyllis Schlafly.

        To be fair, he was the president, and any young R with ambition would try to hook up. But far from repudiating his style, they embraced it.Report

  3. Avatar Doctor Jay
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    says:

    Oh good lord. I did not know this:

    This was pursuant to a policy of the Justice Department, written by John Mitchell himself, after the Watergate burglary, which remains DoJ policy to this day.

    Referring to the policy that a sitting president cannot be indicted.

    Talk about the fruit of a poisoned tree. Yikes.

    Thanks for writing this, Burt. I’m loving it.Report

  4. Avatar greginak
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    says:

    Epic post is epic. Really interesting stuff. Thanks. It was a little before my time so i don’t have any direct memories of it. The amount of aggrieved pain some R’s had about it and how they carried it forward is amazing given what happened.Report

  5. Avatar Jaybird
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    says:

    Holy cow. This is a tour de force. Amazing!Report

  6. Avatar Marchmaine
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    says:

    Excellent Intellectual (/Legal) History post… my highest compliments.

    If I can stay on brand, my counter-intuitive thought for the day is that the Nixon experience has sort of “ruined” impeachment for us… we all now have a bizarre extremely Legalistic understanding of the process; that it requires a broken law, procedural type discovery/evidence; and, ultimately, a smoking gun (used 6 times in your article) to move to impeach. (I’d argue the same for impeaching Clinton for Perjury).

    And, while I’m generally conservative when it comes to impeaching in principle; when impeaching in fact, I think Watergate and everything I mention above serves us poorly.

    If I can go further and make my point, or lose my audience, this was the great failure of Russiagate. And, it is the biggest developing mistake I see in the approach to Ukraine. Stop talking about smoking guns and illegal actions. Frame the action as an abuse of (legitimate) power, hold hearings on how the US Congress will not tolerate such Presidential actions (by either party)… further frame it as Congress reasserting its role as co-equal branch… and give Republicans cover to impeach on Republican principles. If the goal is to remove the President, that is.Report

    • Avatar Burt Likko in reply to Marchmaine
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      says:

      High praise indeed, and I humbly thank you for it.

      In drafting this piece, I intentionally tried to avoid an overt reference to the contemporary situation. In my opinion, the comparison is obvious enough that even the causal reader, not to mention the above-baseline commentariat of which Ordinary Times may brag, can see the parallels readily.

      The only other impeachment preceding Nixon’s was Andrew Johnson’s. This, too, was framed legalistically, principally as an intentional violation of the Tenure of Office Act. To the credit of your point, other framing of the proceedings addressed the political friction between the Unionist Democratic President and the Radical Republican controlled Congress and was in reality that Congress attempting to bring the President under heel. (As it happens, Johnson was ultimately vindicated in his assertion that the Tenure of Office Act was not Constitutional.) But the basic answer to the question “Why should we take the extraordinary step of removing the President from office?” was “Because he used the powers of his office to break the law.”Report

      • Avatar Marchmaine in reply to Burt Likko
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        Yes, I appreciated the fact that it wasn’t simply an allegorical tale of two presidents.

        What if we frame Johnson thus:
        Congress impeaches President for breaking unconstitutional law passed by said Congress to hamstring same President.

        It would be true to say they impeached for violation of the law, but truer to say it was for thwarting the will of Congress… which, it so happens, had overstepped it’s constitutional authority… and therefore might have been counter-impeached could such a thing happen.

        So a dual cautionary tale of 1) Careful with our impeaching tendencies, and 2) Overly legal impeachments aren’t the best politics.Report

      • Avatar gabriel conroy in reply to Burt Likko
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        The debate over the tenure of office act seems to be very similar to the debate over the unitary executive.Report

    • Avatar George Turner in reply to Marchmaine
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      says:

      Where the current situation utterly fails as an argument about abuse of power is that Adam Schiff himself was asking Ukraine for dirt on Trump, and three Democratic Senators threatened Ukraine if Ukraine shut down any ongoing investigations into their side of the 2016 election. It’s pretty hard to maintain the argument that Trump was wrong to do what Congressional Democrats were already doing quite publicly and loudly.

      The argument that Trump was trying to use our military aid as some kind of blackmail also collapses because he did so to get Germany and the EU to kick in more military aid, and he discussed that in his call to Zelensky. It’s a brilliant negotiating tactic with the Europeans, completely in line with his public pressure to get them to contribute more to European security. Blackmailers don’t try to give you more stuff than you were expecting.

      It’s also absolutely normal to withhold US military aid unless the intended recipient changes their behavior or does something they don’t want to do. Congress was screaming that we should without new weapons sales from Saudi Arabia if they didn’t perform a long list of actions regarding the brutal murder of Jamal Khashoggi in the Saudi Embassy in Turkey. So Trump didn’t do something that, if he did do it, would be in line with normal US actions that Congress itself frequently demands, pushing foreign countries to investigate, and even pushing Ukraine to investigate a political opponent, just as the Democrats did for the past two years.

      The Democrats decided to impeach based on what they’d find behind door #3, and it turned out to be a box of Rice-a-Roni, the San Francisco treat.Report

    • Avatar PD Shaw in reply to Marchmaine
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      The impeachment standard is high: it requires (i) action of both legislative chambers; (ii) a super-majority of the Senate; and (iii) the subjects of impeachment to be solely treason, bribery, and high crimes and misdemeanors (which is subject of eternal debate, but highly suggestive of an existing legal standard).

      One aspect somewhat lost to time was that the Senate was supposed to introduce a non-partisan balance to the passions of the demos. As Hamilton put it, the Senate was like a House of Lords, whose role was crucial because impeachment “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

      I think legalism in the impeachment process is to be expected. It’s a high standard and the treason et al. are legal concepts. If someone were to declare a President to have committed treason, wouldn’t one expect people to consult their dictionary which offers a legal definition of treason? And if it’s not technically treason how does one communicate a common sense of purpose in a fractious society?Report

      • Avatar Marchmaine in reply to PD Shaw
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        I don’t disagree, and note that I specified above that I’m conservative with regards the use of Impeachment powers… and I’m particularly sensitive to the fact that we have to have room for incompetent, weak, and poor presidents (all of which apply to Trump) before we resort to impeachment. Though I suppose one could make an argument that someone so incompetent, so weak, and so poorly suited for the office might rise to the level of the vaguely defined “high crime and misdemeanor” and I’d not rule it out of bounds on principle. But, to be clear, that would be the actual charge… not some sort of “legalism” that substitutes for the actual charge.

        Undoubtedly a certain amount of “legalism” is unavoidable, even required. My primary point, however, is that a crime is not a necessary pre-condition of impeachment.

        I think we’d all agree that a President could be impeached for (ab)using a legitimate power granted to him; let’s say the Power of Pardon. There are some imaginable instances where granting a Pardon would be (arguably) impeachable: 1) Self-Pardon and/or 2) Pardoning a directed act, etc. The Pardons, IMO, would still be valid, but the promulgation would be a legitimate occasion for impeachment.

        In this sense, the articles of impeachment need no… or very limited… “inquiry” other than to establish the powers abused and the proper form for hearing in the Senate.

        It’s also relatively clear that the President would be impeached first, then tried if the impeachment was criminally related. In the case of the abuse above, I’d see no further action other than removal from office. That is, there’s no criminal act at all.

        On the other hand, if the President were, say, to stand in the middle of 5th Avenue and shoot someone, it would be well within Congress’s power to impeach without first determining guilt. Once removed from office, guilt or innocence of that particular crime is determined according not to “legalisms” but actual Juridical code.

        So, circling to the top and my original comment, its the Watergate “fantasy” of Clear Criminal Activity, Sexy Informant, Intrepid Investigation, Smoking Gun Tapes, and Impeachment as the only (semi-)successful impeachment we’ve ever had that is overly prescriptive and shapes our imagination as to what impeachment *must* be that I raise a yellow caution flag – in my usual contrarian spirit.Report

        • Avatar George Turner in reply to Marchmaine
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          If Trump was “incompetent, weak, and poor” they wouldn’t be wasting their time trying to impeach him, they’d just be voting him out of office in the upcoming election.

          They’re impeaching him because he’s beaten them time and again, uses executive actions and Tweets like Zeus hurls lightning bolts, and they’re terrified that he’s a shoe-in for re-election.Report

        • Avatar PD Shaw in reply to Marchmaine
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          says:

          To borrow from your analogy below; we’ve had 200 years with this machine, and perhaps the crank simply doesn’t work the way you wish it. And it’s not just the POTUS, but federal judges and state official seem to gravitate to rule of law concerns. We’ve had two impeachment proceedings in my state; Blago would not have been impeached absent the FBI doing the heavy lifting, and the state supreme court justice was not impeached because the House, controlled by the opposing party, found the “high crimes and misdemeanors” language to vague in situations where a clear law has not been violated.Report

    • Avatar Dark Matter in reply to Marchmaine
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      Frame the action as an abuse of (legitimate) power, hold hearings on how the US Congress will not tolerate such Presidential actions (by either party)…

      Given that our actual alternative to Trump was HRC and the Dems still haven’t made any effort to deal with her ethical adventures? I see no evidence of the “by either party”. My expectation is if she’d won we’d be having this discussion just with the players flipped. Bill would be being handed money and we’d all have to pretend that HRC being President had nothing to do with it.

      This is “because Trump” and not “because ethics” territory.

      Now MAYBE Trump-under-the-spotlight-of-impeachment is enough to make his glory fade and his base turns against him enough that the GOP will throw him out. But the spotlight is his territory and his base knew well what they were electing.Report

      • Avatar Marchmaine in reply to Dark Matter
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        That might be a reason to vote for Trump rather than Hillary; but after Jan 2016, our actual alternative isn’t Hilary but Pence.

        If you mean to raise two (or more) meta points such that 1) Russiagate was primarily motivated by an only partially sublimated desire for a do-over… sure, I’ll grant the premise as a contributing, but not dispositive factor; and/or 2) That the Clintons are corrupt in perfectly legal fashion? Sure. But how does that impact Trump being corrupt in much less elegant fashion? Are we suggesting that I’d be thrilled to see the legal wealth of the Clinton empire expand commensurate with their ability to deliver the goods? Would I not also be in favor of impeaching without specific requirement to find an actuarial “smoking gun” – then you’re misreading my position.

        My response to BSDI is impeach BS.

        Impeach Obama for Assassinating US Citizens

        Assuming, of course, that Congress first attempted to navigate these waters by warning that the War Powers act and/or the AUMF of 2001/2 does not grant those powers. The silence of Congress, however, is implied consent. So Congress is most assuredly part of the problem.

        And that’s maybe the biggest problem with impeachment… Congress isn’t fit for its role as a legislative branch… so both sides want an Imperial Presidency. They just want their imperium.

        That’s why civil war looms, it will come when the good-guys announce it is for the good of the country. We’re all the good guys.Report

        • Avatar Jaybird in reply to Marchmaine
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          says:

          The Libertarians got 3% last time (3 and a quarter!). The Greens got 1%. McMuffin got half a percent. “Other” got .75%.

          That’s 5.5%.

          This may be me projecting but somewhere around half of that 5.5% strikes me as eminently stealable by the real parties and the fact that neither is willing to run hard for it at this point strikes me as really, really odd.Report

          • Avatar Marchmaine in reply to Jaybird
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            says:

            It is easier to turn the existing crank harder than build another crank to turn.

            Plus, if I were to build another crank, I wouldn’t go for the 2.5% of voters that react like cats; I’d go for large chunks of the other side that are disaffected dogs not feeling the love of their handlers.

            Either way, new cranks are hard, cost lots of money and disrupt the machine in unpredictable ways.Report

        • Avatar Dark Matter in reply to Marchmaine
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          says:

          My response to BSDI is impeach BS.

          Your other post has the example of pardons as a power that can be abused, and I’d add to that list exchanging pardons for money. The problem is even that level of abuse of power is apparently only an issue if Trump does it. In the real world, the Press has no interest in looking into the antics of the VP’s son because they’re in love with the Great One and not only can you sell Pardons, but you can do so and then almost be President again.

          It seems like a problem if we have one set of rules for Democrats and another for their political opponents. The implication is it’s the “political opponents” part that is viewed as a problem here and that’s why we’ve been hearing about impeachment since before he took office.

          Impeach Obama for Assassinating US Citizens

          Where did Obama do this? If it’s inside US borders, then great, do it. If it’s anywhere where arrest is an alternative, then great, do it. If it’s on a battlefield in the context of a declared war against people who are actively engaged in war against the US, then any soldier can shoot any enemy combatant. Drones are effectively flying soldiers.

          Assuming, of course, that Congress first attempted to navigate these waters by warning that the War Powers act and/or the AUMF of 2001/2 does not grant those powers. The silence of Congress, however, is implied consent. So Congress is most assuredly part of the problem.

          The core problem is the situation. If you don’t want US citizens who have taken up arms against the US in an active war to be killed on a battlefield, then you need to present a reasonable alternative. Pointing to some aspect of the war and saying “that’s illegal by non-war rules” is correct, but not useful.

          Civilian law assumes law enforcement has control over the crime scene. We’re not giving trials to the US citizens who have taken up arms because they’ve made it impossible. If you’re making it impossible for civilian law to apply to you by hiding in a cave in a battlefield in a lawless land where we’d need an army to “arrest” you, then you don’t get to complain if the army shoots you.

          Further after burning lots of money we’ve had close to zero success dealing with battlefield captured terrorists in a courtroom so this is a way to stop.Report

  7. Avatar Marchmaine
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    says:

    “It’s pretty hard to maintain the argument that Trump was wrong to do what Congressional Democrats were already doing quite publicly and loudly”

    No, it isn’t hard at all.

    I hate to keep playing Thomas More to your William Roper, but this is exactly why you impeach the President… so that you might also remove Congressional Democrats (where appropriate).

    Finally with regards quid-pro-quo in diplomacy, no one disagrees that all aid is contingent and manipulative for something that we – as a nation – determine to be in our interests; we could even insist upon certain anti-corruption or human-rights type changes… so long as they aren’t thinly disguised gifts of personal benefit.

    I’m not 100% sure the Ukraine situation is “the very best example” out of many that we could use to impeach a reckless imbecile like Trump… but if it’s the one people are going to use, my points above stand… don’t make it hinge on the definition if “is”. Big Picture, people, big picture.Report

    • Avatar George Turner in reply to Marchmaine
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      But he was withholding aid to get Germany and the EU to contribute more aid, because if we moved first they wouldn’t see a need to contribute anything. Trump was using Ukraine’s unfilled need for military equipment as the inducement to get Europe to do more to help Ukraine. He discussed their foot dragging, with Zelensky, right in the phone call. So they’re impeaching him for doing the opposite what they’re claiming he did wrong. The Ukrainians also didn’t find out the US military aid was held up until a month after it had been held up, which destroys any claim that Trump was using it to try and pressure them, because you can’t pressure someone with something they don’t even know about.

      Don’t get me wrong. I fully support impeachment because I think it will destroy Democrats in 2020. I want more impeachment! Heck, I’d love it if the Senate removed him from office because then he’d win 2020 in a landslide of Reagan proportions and get to be on two US Presidential coins for serving non-consecutive terms. 🙂Report

      • Avatar Marchmaine in reply to George Turner
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        says:

        “Stop talking about smoking guns and illegal actions. Frame the action as an abuse of (legitimate) power, hold hearings on how the US Congress will not tolerate such Presidential actions (by either party)… further frame it as Congress reasserting its role as co-equal branch… and give Republicans cover to impeach on Republican principles.”Report

        • Avatar George Turner in reply to Marchmaine
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          says:

          Why not frame it as an abuse of the impeachment power and remove House Democrats?

          Trump was just conducting normal business that all Presidents do on a weekly basis. Obama himself kicked off a lot of foreign investigations of political opponents, which is what started the whole sordid Comey investigations and the Mueller probe. Should Obama be impeached for that while we’re at it?

          The trouble is that Democrats, including Democrat voters, are going to have to hold up their end of this impeachment argument around office water coolers, and there’s no way they’ll be able to hang in that conversation for more than a couple of minutes before all their points get shot down in flames.

          It would be like Republicans trying to impeach Obama for not taking a proper drop on the 13th hole at The Oaks, and then trying to argue that the impeachment wasn’t politically motivated and that upholding the rules of golf is paramount for the republic to survive. They could try that argument once, but after that they’d have to spend their break times hiding in the broom closet.Report

  8. Avatar Kolohe
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    says:

    Just want to echo above and say great job Burt. And I also agree with Marchmane’s take, with the added facet that the Clinton impeachment, which was overtly political, but also had a legitimate basis in an illegal act by a sitting President (perjury) also warps the dynamics of any impeachment proceeding that would occur in the next generation.Report

  9. Avatar FortyTwo
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    says:

    Thank you for this article. You always have tremendous posts. I still occasionally reread the Three Classes one from 10? years ago.Report

  10. Avatar Mike Schilling
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    says:

    Those incredibly incompetent buglers getting caught was so contingent on the details of how they screwed up, and history would be so different if they hadn’t been.Report

  11. Avatar Fish
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    says:

    Excellent post, Burt. Thank you for taking the time to write it.Report

  12. Avatar Oscar Gordon
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    says:

    This post met or exceeded the quality of posts we have come to expect of you, Burt. Well Done! This will be reflected in your annual review, but may or may not impact any raises or bonuses awarded.

    Sorry, it’s that time of the year in corporate America…Report

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