The leadership of the U.S. House of Representatives is urging a “go slow” approach to impeachment proceedings against President TrumpDonald TrumpMcCabe wins back full FBI pension after being fired under Trump Biden's Supreme Court reform study panel notes 'considerable' risks to court expansion Bennie Thompson not ruling out subpoenaing Trump MORE, mindful of polls showing most Americans oppose impeachment. Advocates of that position cite the “slow” approach of the 1974 Nixon impeachment inquiry, which led to his resignation, in contrast to the “fast” approach of the 1998 Clinton impeachment and trial in the Senate where no Article of Impeachment gained more than 50 votes.
As a lawyer who served on the staff of the House Judiciary Committee’s inquiry into whether President Nixon should be impeached, I find the analogies made to that process often faulty. The circumstances were very different.
The Nixon impeachment inquiry proceeded as quickly as possible but, with respect to Watergate, needed additional time because the Senate Select Committee on Presidential Campaign Activities had not issued a report that organized and analyzed the evidence of witnesses who appeared before it. The Select Committee heard testimony in May of 1973 but did not issue a report until June 1974. The report was, therefore, not available when the House Judiciary Committee started its work in January 1974, and its impeachment inquiry staff had to spend considerable time compiling and then presenting its own carefully organized evidence on Watergate and other topics to committee members in closed session from May 9 to June 21.
In contrast, the Mueller report has organized much of the evidence. That evidence was compiled in part for Congress to consider. The Mueller report makes clear the special counsel’s desire not to preempt the impeachment power of Congress by drawing definitive conclusions from the facts found (p. 263).
In the Nixon impeachment inquiry, “go slow” meant seven months. That’s how long it took from the start of the House Judiciary Committee inquiry in January to the committee vote in late July.
Those seven months were spent largely behind closed doors. They were thus not used to rally public opinion. The House Judiciary Committee, whose inquiry staff was bipartisan, did hear witnesses, but they were heard in closed session where committee counsel John Doar and the president’s counsel James St. Claire did most of the questioning.
It was the July televised session at which members explained their votes that had the biggest impact on public thinking. Those who heard it will not forget the speeches of Rep. Barbara Jordan (D-Texas) and Rep. James Mann (D-S.C.). According to Gallup polls, only after that committee debate did public support for impeachment exceed 50 percent after starting at 19 percent in June 1973.
An impeachment inquiry should be begun, as was the case with Nixon, because there are substantial questions of possible grounds for impeachment needing answers. The Mueller report raises many of those questions. A recent Quinnipiac Poll shows that 54 percent of voters believe that Trump “attempted to derail or obstruct the investigation into the Russian interference in the 2016 election.”
Comparing the strength of evidence of obstruction of justice against Nixon and Trump, there was strong evidence that President Nixon obstructed an investigation of a criminal break-in to the Democratic National Committee headquarters conducted by the president’s campaign to collect damaging information on the Democrats. The obstruction of justice offense that could be levied against President Trump is similar: that he obstructed investigation of a criminal cyber espionage attack on the Democratic National Committee by the Russian government to gather damaging information helpful to Trump’s campaign.
In neither obstruction of justice case is there evidence establishing that the president participated in the underlying crime. But there are important differences. The espionage attempt by the Nixon campaign failed, whereas the effort by the Russian government succeed in gathering damaging information whose release sowed divisiveness in the Democratic Party damaging to the Hillary Clinton campaign. Of the two actors guilty of the underlying crime, the Russian government’s political espionage for Trump’s benefit is potentially more aggravated than political espionage conducted by the Nixon campaign, because it creates a potential inference of our president being beholden to a hostile power for its assistance in his election.
The seven-month Nixon impeachment inquiry began without a preconceived outcome and ultimately did lead to a House Judiciary Committee vote, in which seven of the committee’s 17 Republicans voted for impeachment. Today, winning Republican votes is a much more daunting prospect. President Nixon’s control over the Republican Party was far weaker than President Trump’s control over the party of today, since Trump has his dominant “base” and Nixon did not.
There is a legitimate question whether impeachment should be voted if there is no prospect for conviction in the Senate. But the answer to that question is not obvious and depends in part on the outcome of a reasonable impeachment inquiry. It may be essential, where there is a strong case for impeachment, to put all members of Congress on the record by requiring them to vote.
In the case of the Nixon inquiry, it was not until the House Judiciary Committee voted for impeachment that most Americans were persuaded to support impeachment. Why do we expect that most Americans should be prematurely predetermined now?
Evan A. Davis, senior counsel with Cleary Gottlieb, was a member of the U.S. House Judiciary Committee Impeachment Inquiry staff in 1974 and led the Watergate and Cover-up Task Force. He also is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).