The Coming Trial of Richard M. Nixon
MILLER, ARTHUR S.
THE COMING TRIAL OF RICHARD M. NIXON ARTHUR S. MILLER The House of Representatives is moving inexorably toward impeaching Richard Nixon, President of the United States. Sometime soon, possibly...
...Six—Conviction requires summary removal from office...
...Fifty-four Senators were present and voted...
...If one takes The Progressive's "Bill of Impeachment" (December 1973 issue) as a model, the allegations that might be levied against President Nixon are exponentially more grave...
...The Senate assembled on March 4 and the President pro tempore directed the Sergeant at Arms to "make proclamation...
...Does an article of impeachment have to relate only to the conduct of official duties, or can it be concerned with nonofficial matters such as political campaigns or, indeed, nonpayment of taxes...
...James Reston of The New York Times thinks not...
...The next day, at 1:00 p.m., Chief Justice Chase entered the Senate chamber and again directed the Sergeant at Arms to make the same proclamation, a ritual repeated each day the Senate sat...
...There must, he says, be "a fair trial...
...What does happen then...
...After removal from office, any person convicted in an impeachment trial is, under the Constitution, "liable and subject to indictment, trial, judgment, and punishment, according to law...
...The Chief Justice was notified...
...The statute of limitations is the sole restriction on indictment subsequent to removal from office...
...The first step is formal notification: On February 25, 1868, Representatives Thaddeus Stevens and John A. Bingham appeared in the Senate and uttered this chilling message: "By order of the House of Representatives we appear at the bar of the Senate, and in the name of the House of Representatives, and of all the people of the United States, we do impeach Andrew Johnson, President of the United States, of high crimes and misdemeanors in office...
...But he was not disqualified from holding other office...
...But the similarity is only superficial: Impeachment and trial are in fact political actions cast in lawyers' language...
...Five—But if the power to impeach is "limited" to "great offenses," as Berger says, then it must follow that the Senate cannot be the final judge of culpability...
...Certainly, fixed television cameras (with no still cameramen allowed), shooting through small apertures and with subdued lights, could not possibly interfere with the orderly conduct of a Senate trial...
...He has written three books on constitutional law...
...Senate rules, adopted in 1868, still guide procedure in that body...
...In at least one of the four convictions of Federal judges, the Senate did not take that second step: District Judge Hal-sted Ritter was convicted in 1936 of bringing his office "into scandal and corruption," partly because he accepted gifts from wealthy residents of his district...
...And it will take place at a time when this nation, 106 years later, is immensely more complex, domestically and internationally...
...Berger, however, believes otherwise...
...What, then, may be gleaned from what historian Samuel Eliot Morison once called "one of the most disgraceful episodes in our history...
...But the criteria for removal of a President, however uncertain, are spelled out in considerably more detail...
...Once the awesome words were spoken, the House managers rose, and their chairman read the articles of impeachment, eleven in all—rather like the counts in an indictment in an ordinary criminal trial...
...Raoul Berger, perhaps the nation's leading academic expert on impeachment, says that the words "high crimes and misdemeanors" have a limited, technical meaning, one fully understood by those who wrote the Constitution...
...Cross-examination is possible...
...Sometime soon, possibly before summer, the House will vote on "impeachment"—the portentous constitutional term similar to indictment in a criminal prosecution...
...To say that is not to denigrate the process: "Politics" surely is not a dirty word, Two—The similarities go to the form or facade, not to the substance...
...Hear ye...
...Even if President Nixon is not impeached or, if he is and the Senate acquits him, the nation will undoubtedly have, as it did in 1868, what Stewart Alsop once called a "paraplegic" Presidency...
...In any case, the only unassailable statement is that the law is unclear...
...Is the respondent, Andrew Johnson, guilty or not guilty, of a high crime [misdemeanor], as charged in this article of impeachment...
...Whether it would be wise to appeal to the Supreme Court should the Senate convict is quite another question, as is the question of whether it would be wise for the Court to accept the appeal...
...The usual rules on admissibility of evidence in criminal trials are followed —with one exception: if the Chief Justice refuses to admit certain evidence, he can be overruled by a majority vote of the Senate...
...If the scholars disagree, who, then, can say...
...In 1970, when Representative Gerald Ford led the effort to impeach Justice William O. Douglas, he said that for judges an impeachable offense is whatever the House, with concurrence of the Senate, says it is...
...Senators are not permitted to speak, unless they are called as witnesses, in which event they are treated as any other witness...
...If President Nixon is convicted after the almost certain impeachment by the House, the result would be similar to Great Britain dismissing both the Prime Minister and the Queen at the same time...
...Several more days passed, devoted in part to technical matters and in part to routine Senate business...
...The Senate chamber, and indeed that of the House when it votes on impeachment, will be jammed with spectators and with as many media representatives as can be accommodated...
...Hear ye...
...To realize what may occur, the best, indeed only, relevant reference point is the U.S...
...Reston wrote early in April that "the orderly system of government is beginning to work again...
...The trial itself began March 13, with President Johnson given until March 23 to file his answer...
...Andrew Johnson was charged mainly with violating the Tenure of Office Act for firing Secretary of War Edwin Stanton, plus sundry other "defiances" of Congress...
...Berger's definition, however, is ambiguous...
...But Wade was allowed to sit and to vote—for conviction...
...The actual voting took place May 16, on only three of the articles of impeachment...
...Andrew Johnson chose not to appear, but to be represented by counsel...
...That interest peaked last year in the Senate's Watergate hearings—a continuing event that in sum was a seminar for the American people in the workings of their Government...
...In 1868 many questions were so asked by individual members of the Senate...
...The eleven articles of impeachment did not contain indictable crimes as such...
...He went on to say that a higher standard might apply to the President and Vice President...
...His judgment may prove correct in the long run, but it is certainly premature: When the House has voted on impeachment, when the Senate has conducted its trial, when the people and their representatives in Congress have addressed themselves not only to the case of Richard M. Nixon but to the institutional circumstances of that case—when all this has happened we will begin to know what "system" we have, and whether it is working...
...Laying aside such matters as "absolute power" to invoke executive privilege (held invalid in Nixon v. Sirica, the Special Prosecutor's case to get White House tapes), the impoundment of appropriated funds (held illegal by most courts that have considered the question), the firing of Archibald Cox as Special Prosecutor (held illegal by Judge Gerhard Gesell), and even the savage, unconstitutional bombing of Cambodia, there is still enough evidence on the public record to reveal a pervasive attempt to steal the 1972 election, to obstruct the system of justice, and generally to subvert the governmental processes...
...But not Senator Edmund Ross of Kansas...
...That assessment is disputed by some contemporary historians...
...His first reply to the "How say you...
...The very ability of the Government to govern is already in question, and the crisis is bound to intensify with every day that Nixon remains in office...
...Intemperate or even incautious public statements by Senators would only further confuse an already highly sensitive and abrasive situation...
...A committee was formed to "wait upon" the Chief Justice, and on March 5 he was conducted to the chair...
...After all, the President need not attend (he need not be "in the dock") and probably will not, if the trial does take place...
...The House managers open the argument before the Senators, who sit as both judge and jury...
...It also must decide the question of law: Was the act (or acts) an "impeachable" offense, for which the President could be convicted...
...No higher drama, not even a Presidential inauguration, can take place in this country...
...Four—The House of Representatives must, of course, make an initial determination on the nature of an impeachable offense...
...To some this means that the accusations must be proved "beyond a reasonable doubt," but there is nothing in the Senate rules calling for that standard...
...The Chief Justice, required by the Constitution to preside in Presidential impeachments, swears to do "impartial justice according to the Constitution and laws" —and then administers the same oath to the Senators separately...
...The decisions on television, both for the House and the Senate, must be made soon...
...During the Johnson trial, Senator Benjamin F. Wade, Ohio Republican, was challenged because as President pro tempore of the Senate he was Johnson's potential successor if the President had been convicted, since the office of Vice President was vacant...
...Each side may call witnesses and question them...
...Only a simple majority is required...
...Confessions and convictions of guilt, plus other corroborated testimony (mainly before the Ervin Committee), such as the "enemies" list, provide in their totality several bases of possible House action...
...In other words, the Senate does not sit merely to determine the question of fact: Did the President do the acts listed in the articles of impeachment...
...Berger says that "the founders conceived that the President would be impeachable for 'great offenses' such as corruption, perfidy...
...The Secretary of the Senate stood and asked each Senator: "Mr...
...As a matter of technical law, Rehnquist surely is correct...
...An even more momentous question, however, centers on the ability of the Government—of the nation and the people—to cope with the corruption and decay that have brought the President to the brink of impeachment...
...A little more than two months later—on May 26—the trial was over: Johnson was acquitted, by a vote of thirty-five to nineteen, one fewer vote than the two-thirds necessary to convict...
...After three votes were taken, it became clear that the President would prevail, so the Senate adjourned for ten days, and voted to acquit him on May 26, 1868...
...Surely that is sound, so far as it goes...
...Small wonder, thus, that it is a rarely used instrument, and that it properly is handled with utmost circumspection and care by members of Congress...
...That is the Senate acting as a judge...
...So it is with impeachment...
...That means that while the Senate's sanctioning power is limited to removal and disqualification, Federal (or state) prosecutors are not barred from invoking the criminal laws against the person...
...When his turn came to vote, he wrote later, "I almost literally looked down into my own grave...
...That will be known by the end of summer 1974...
...On the other hand, an equally flagrant example of conflict of interest in that trial was Andrew Johnson's son-in-law, Senator David T. Patterson, Tennessee Democrat, who also took part in the trial and voted—to acquit...
...Following that are the closing arguments of the House managers...
...If a Senate trial does occur, then House members are entitled to attend, as they did in 1868, and doubtless tickets for admission will be eagerly sought and carefully hoarded...
...Hear ye!," he cried, "All persons are commanded to keep silence on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against Andrew Johnson, President of the United States...
...Whatever answer the House gives to that preliminary problem, the Senate has the power itself to determine it de novo (from the beginning...
...From the Johnson impeachment in 1868, however, the answer would seem to be no...
...and we do further inform the Senate that the House of Representatives will in due time exhibit particular articles of impeachment against him, and make good the same...
...but the second was clear: "Not guilty...
...That is the Senate acting as a jury...
...Whether people generally have faced its implications is doubtful, despite many polls raising the question...
...Some scholars—such as Professor Herbert Wechsler of the Columbia Law School—flatly reject any power of judicial review...
...Whether an impeachable offense means an "indictable crime" is an unsettled question...
...sided in 1868—by a two-thirds vote whether the President is guilty of designated "high crimes and misdemeanors...
...Three—Under what circumstances can a Senator be disqualified from participating...
...Senator— how say you...
...Those charges are ludicrous by modern standards...
...How many former associates of Richard Nixon will have to be indicted and convicted before the net, once wide and porous, slowly tightens so that he, and he alone, is in it...
...Then comes the defense...
...Leading politicians of both parties, particularly when they speak off the record, now predict impeachment is inevitable...
...The difference from 1868 is that it will last for more than two years, rather than the eleven months of Johnson's term...
...Other, more fundamental differences exist between 1868 and 1974...
...A person convicted could assert that Congress had exceeded its constitutional authority...
...If a Senator wishes to ask a question of a witness or "to offer a motion or order," it must be "reduced to writing and put by the presiding officer...
...Certain beyond doubt, however, is the fact that few understand, in even the vaguest way, what takes place once the House votes an "indictment" of the President...
...But that was not then (and surely would not be now) an ordinary trial...
...The answer is similar to that, say, of Supreme Court Justices: It is the individual Senator's decision, and his alone, to make...
...He argues for keeping the emotional level down and maintaining as calm and judicial an atmosphere as possible...
...he asserts that if a Senate trial, for example, violated "due process of law," then review could be obtained...
...Justice William Rehnquist, in an offbench, perhaps unguarded speech a few weeks ago, said that the jurisdiction of the Supreme Court, speaking generally, is within the discretion of that Court, and that if the Court wanted to hear an appeal from an impeachment conviction, it could...
...Worth mention, also, is the statement of then Attorney General Richard Kleindienst, who in early 1973 told a Senate Committee inquiring into executive privilege that "you don't need evidence to impeach"—clearly implying that the Senate judgment is final...
...Each time the Chief Justice ordered: "Call the roll...
...Is a conviction in an impeachment trial reviewable by, say, the Supreme Court...
...However, another act of the Senate is needed to comply with the other constitutional sanction—"disqualification to hold and enjoy any office of honor, trust, or profit under the United States...
...There is an intense public interest, both national and international, in the travail of Richard Nixon...
...What is a "high crime or misdemeanor...
...and in their name we do demand that the Senate take order for the appearance of the said Andrew Johnson to answer to said impeachment...
...Most had previously made their preferences known...
...The person in the dock—figuratively, for he need not appear in person—is literally the most powerful single human being in the world...
...The trouble is that it does nc go very far...
...The stately, solemn ritual began...
...of the Secretary was not heard...
...Those offenses listed in the House's articles of impeachment, as well as any other offenses that might bring a grand jury to indict, could be involved...
...It is, of course, incumbent upon all members of the Senate today to be cautious, even excessively so, about expressing any opinions about President Nixon, for if a trial does occur the appearance of justice will be as important as justice itself...
...When a President is impeached, the charges are brought against a person who, almost alone in the world, wears the twin hats of chief of state and head of government...
...In essence, the Senate must decide—sitting "as a court," said Chief Justice Salmon P. Chase, who preArthur S. Miller, professor of constitutional law at George Washington University's National Law Center, is chief consultant to the Senate Watergate Committee...
...The standard the Constitution sets for the tenure of Supreme Court Justices is that they "shall hold their offices during good behavior," language sufficiently vague that a case may be made for Ford's statement regarding judges...
...One question, new to this century, is whether an impeachment trial should be televised...
...Certain lessons can be drawn from the Johnson impeachment: One—A Presidential trial is, as Chief Justice Chase said, similar to a judicial proceeding...
...Some are suggesting that the Watergate investigations and the moves toward impeachment are, in themselves, evidence that the "system," whatever that means, is working...
...They were not, in other words, acts for which the Federal criminal law could have been invoked...
...That crucial vote saved Johnson from certain infamy...
...the most recent is "The Supreme Court and the Living Constitution...
...Senate trial in 1868 of President Andrew Johnson, plus analogies drawn from the few—a dozen in all— impeachments of judges, of whom only four were convicted...
...Seven House managers were appointed to act as prosecutors...
Vol. 38 • June 1974 • No. 6
