Impeachment: The Constitutional Problems
The Impeachment and Trial of Andrew Johnson
The Federalist Papers explained that the new Constitution allowed for an exception to the doctrine of separation of powers. It provided for “a partial intermixture” in certain special cases. This was defended as “necessary to the mutual defense of the several members of the government against each other.” So the President was given a veto over the legislature and the Congress the judicial power of impeachment as “an essential check…upon the encroachments of the executive.” Impeachment was to be a “method of National Inquest into the conduct of public men,” a way to try “the abuse or violation of some public trust.”1
There are two reasons for seriously considering the impeachment of Richard Nixon. One is that this may prove the only kind of legal proceeding in which the President’s complicity in the unfolding Watergate and related scandals may be fully and fairly determined. The other is that only so grave a step may deter a future President from the abuses charged against the Nixon White House. Presidential power has grown so enormously, especially since the Korean War in 1950, and the temptations this offers an incumbent and his associates are now so great that impeachment and removal from office if convicted may be the only constitutional sanction to stem the trend toward Caesarism in the White House. And Caesarism, Gibbon may remind us, was the establishment of one-man rule without outward disturbance to the constitutional forms of the old Republic.
The first reason for considering trial by impeachment arises from the difficulty of ensuring a President’s appearance as a witness in any ordinary court of law, much less before a grand jury. Even as the special prosecutor Cox takes over, there are already half a dozen criminal proceedings under way at different stages in various parts of the country, as outgrowths of Watergate and the related affair of the Pentagon Papers. The President, if he were a private person, would normally be sought as a witness in several or all of them; they take on more and more the aspect of a far-flung conspiracy; the filaments lead unquestionably into the White House, and to the Oval Office door. It may not be possible to arrive at a judgment of Nixon’s responsibility without a chance to question him under oath, either as a witness or by interrogatories. Indeed it is possible that some indicted officials may go free when tried for lack of Presidential testimony, or because the White House, on the blanket ground of national security, has withheld documents subpoenaed in their defense.
As this is being written the White House has burst into fury because an unnamed “Justice Department source” and “another knowledgeable source” dared to say aloud to the Washington Post2 what is obvious to anyone following the news at all: first, that “there is an evidentiary pattern” which raises questions about the President’s role in the whole affair, and second, that “the President should be given an opportunity to explain himself.”
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