The other equally classic definition, almost invariably put forward by the defense, was formulated by former Judge Simon H. Rifkind of New York as counsel for Mr. Justice Douglas. In a memorandum of law submitted to the House committee early in the proceedings, Judge Rifkind argued that only indictable offenses were impeachable, i.e., offenses against federal law. “There is nothing in the Constitution or in the uniform practice under the Constitution,” he argued, “to suggest that Federal judges may be impeached for anything short of criminal conduct [emphasis in original]. And the prohibition against ex post facto laws, the notice requirement of due process, the protection of the First Amendment, and considerations of ‘separation of powers’ prevent any other standard.”31
It is ironic—but not really strange—that this argument on behalf of one of the greatest liberal Justices in our history is identical in substance with that put forward in defense of one of the most hated illiberal—Supreme Court Justice Samuel Chase, whose removal by impeachment was sought—also unsuccessfully—for his conduct of trials under the Alien and Sedition Acts and the common law of seditious and criminal libel.
The House committee in its final report on the Douglas impeachment resolution concluded that it did not have to “take a position” on either of these two conflicting concepts of impeachment because “intensive investigation” had “not disclosed credible evidence that would warrant preparation of charges on any acceptable concept of an impeachable offense.”32 The House accepted this verdict, clearing Mr. Justice Douglas.
But earlier in its report the House committee did take a position, and it was somewhere—though just where was not at all clear—between the prosecution’s and the defense’s interpretation of what constitutes an impeachable offense. It said the precedents showed “that the House of Representatives, particularly in the arguments made by its Managers [i.e., prosecutors] in the Senate trials [of impeachments], favors the conclusion that the phrase ‘high crimes and misdemeanors’ encompasses activity which is not necessarily criminal in nature.”33 This is precise as description but inconclusive as doctrine.
Berger is critical of Johnson’s impeachment and is downright effusive in praise of Johnson’s defenders. But when it comes to the theory underlying the impeachment he agrees with Johnson’s prosecutors. On the basis of a formidable inquiry into four centuries of English precedents, he concludes that “the test of an impeachable offense in England was not an indictable, common law crime.” The Framers, Berger argues, separated impeachment from criminal process when they “withheld from Congress the power to inflict criminal punishment” by impeachment and limited the penalty on conviction by impeachment to removal and disqualification from office. His final argument is that the Constitution specifically provides that an official convicted on impeachment “shall nevertheless be subject to Indictment, Trial, Judgment and Punishment according to Law.” Were impeachment a criminal process, this would be a violation of the double jeopardy clause.
There are additional arguments for this in the Federalist Papers. One of the arguments in the Federalist Papers for making the Senate rather than the Supreme Court the final judge of impeachments is that this would prevent an official convicted on impeachment from having to come before the same court if he were later prosecuted “in the ordinary course of law.”34 The same Federalist Paper also shows that the Framers were not thinking of impeachment as a criminal process when it said that the Senate, sitting as the court on impeachment charges, “can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of the courts in favor of personal security.”35 It is clear that impeachable offenses were not intended to be limited only to indictable crimes.
This question will loom up as a crucial point if it turns out that political as distinct from criminal charges play their part in any effort to impeach Nixon. There are three kinds of political offenses which might be alleged. One might be that Nixon’s failure properly to control secret agencies he had himself set up—and the establishment of such agencies without statutory authority—constituted a malfeasance of such magnitude and so dangerous to constitutional government as to warrant removal by impeachment even if it could not be proven beyond reasonable doubt that he was personally culpable for the burglaries and their attempted cover-up.
A second type of political allegation would arise if Congress finally passes the Eagleton bill to shut off all funds for continued warfare in Indochina, and passes it again over a Presidential veto, and the President still insists that he can divert funds from other purposes and continue the bombing because he and he alone is the judge of his own war powers as Commander in Chief. Unless he stated a readiness to abide by the results of an appeal to the Supreme Court, impeachment would be the only resort left to enforce the war powers of Congress and its power of the purse.
A third type of political allegation might arise from the sweeping assertion by Nixon of such so-called “inherent” powers as executive privilege and impoundment of funds whose social purpose he disapproves. No other President has ever dared to exercise these powers as broadly as Nixon has. They represent a threat to a government of equal and separate powers, a big step toward Presidential dictatorship.
This last category of possible political charges is the most difficult of all and serves to emphasize in the clearest form the wisdom of a broad consensus before resort to a weapon so grave as the removal of a President. The Constitution wisely requires a two thirds vote of the Senate rather than a mere majority for conviction. Republicans as far right as Goldwater and as far left as McCloskey should be persuaded of the need for trial by impeachment before it is even begun, though that only requires a majority vote of the House. Otherwise the country will be torn apart by controversy, polarized in an atmosphere which will make reasoned debate and equitable judgment impossible. The clearest evidence that so broad a consensus was beginning to take shape came in the joint letter on May 18 by Senators Goldwater and Cranston, usually on opposite sides of the fence, calling on Elliott Richardson before his confirmation as Attorney General to give a special prosecutor power to reach into the White House itself in his investigation not only of Watergate but of the Ellsberg-Russo trial.
To be honest about it, how one feels about the “inherent” powers of the Presidency has been generally determined throughout our history by how one feels about the use to which they are put and the pressing needs of the time. The Presidency is a great office precisely because of its flexibility in emergency. People on the left like myself applauded when Truman and Eisenhower invoked executive privilege to shield government officials against the witch hunt, as waged first by Nixon on the House Un-American Activities Committee in the late Forties and then by McCarthy in the Fifties. We applauded when, in conflicts with the military-industrial complex, Truman, Eisenhower, and Kennedy in turn impounded, i. e., refused to spend, money voted for arms race purposes, including such projects as the 70-group air force and the Nike-Zeus antimissile.
These are but a few of many examples of a double standard which must be faced before one can reasonably decide that abuse of “inherent” powers has grown so serious that it is a clear violation of the Constitution and a danger to the Republic.
But it has yet to be widely realized that the facts coming out in the affairs of Watergate and the Pentagon Papers have short-circuited the old controversy over whether impeachable offenses need be indictable. The main offenses coming to light in the various investigations of Watergate involve a wide range of indictable crimes, all impeachable even under the strictest definition of “high crimes and misdemeanors.” These would provide the second and easiest category of charges for a bill of impeachment as more evidence accumulates. Even breaking and entering, normally a crime only under state law, is covered because the original burglary of the Democratic National Committee headquarters took place in the District of Columbia where breaking and entering is a federal offense.
The revelations piling up include violations of federal electoral campaign, banking, and securities laws; federal statutes making it a crime to obstruct justice or conceal evidence of crime; infractions of the laws guaranteeing free trial and of the statutes limiting the jurisdictions and regulating the activities of the CIA and the FBI and possibly also the less well known but equally powerful Defense Intelligence Agency (DIA) and the supersnooper electronic agency, the National Security Administration (NSA).
Also involved are the laws which make it a crime to conspire to violate any of these laws, whether or not the crime itself was finally committed. In prosecutions for conspiracy, circumstantial evidence is usually and necessarily relied upon. So are conspirators ready to turn state’s evidence in hope of mitigated sentences. The conspiracy charges beginning to take shape against high officials of the Administration may or may not end by involving Nixon himself. If they do, this would prepare for trial by impeachment in a most far-reaching form.
A third major category of possible charges for impeachment has been almost entirely overlooked, though it consists of one of the two crimes specifically mentioned in the impeachment clause of the Constitution. This is bribery (the other, of course, is treason). This was touched on so lightly in the Goldwater-Cranston letter to Richardson, on May 18, that its significance has not been appreciated.
That letter cited eleven questions arising from the Ellsberg-Russo trial which called for extensive investigation by the Special Prosecutor. The eleventh was “The communication to the trial judge by Mr. Ehrlichman.” That communication, made on April 5 at San Clemente and discussed again on April 7 at Santa Monica, was the offer of a high post in the government, the directorship of the FBI, to the trial judge while he was presiding over a trial in which the government’s good name was at stake.
Any comparable offer by a private plaintiff would have been regarded as a bribe, and the Ellsberg-Russo defense so characterized it. The offer was made by Ehlrichman, then Nixon’s top aide for domestic affairs. When it was first broached at the summer White House in San Clemente, Nixon himself—according to Judge Byrne—entered the room briefly and ostensibly only to meet the judge.
The whole affair and the President’s involvement might have been more fully disclosed if the defense had had time to file a motion for appeal with the Ninth Circuit after Judge Byrne refused to dismiss the case on the ground that the secret offer was improper and an interference with the right to free and impartial trial. But this was foreclosed when Judge Byrne dismissed the indictment on other grounds four days later, on May 11.