The Case for Impeachment. Allan Lichtman J.

magazine, “a kind of Nix-speak. Government officials are entitled to make flat statements one day, and the next day reverse field with the simple phrase, ‘I misspoke myself.’ ” Surrogates would later find themselves caught in the same trap of struggling to explain away Trump-speak, often in the form of Trump-tweets.¹⁰

      THE COVER-UP EXPOSED

      By summer of 1973, as part of a deal with the Democratic Senate for his confirmation, Attorney General Elliot Richardson had appointed law professor Archibald Cox as a special prosecutor. This came as a stinging affront to Nixon, who had told his advisor Henry Kissinger six months earlier that “the professors are the enemy. Write that on a blackboard 100 times and never forget it.” Worse still, Cox was from the Ivy League flagship of Harvard.¹¹

      With Democrats in control of the House and the Senate, a special Senate Watergate Committee headed by veteran Democratic senator Sam Ervin of North Carolina had begun holding spectacular televised hearings. The committee’s investigation uncovered an iceberg of illegal and illicit activities that Nixon had desperately sought to keep hidden. The Watergate break-in, it suddenly became clear, was only the tip.

      Not long after, in July 1973, Alexander P. Butterfield, an obscure former White House aide, launched a bombshell: the president had tape-recorded all conversations held in his White House offices. During a yearlong struggle over access to the tapes, Vice President Agnew became the first vice president since John C. Calhoun to resign the office. Investigators had found that as governor of Maryland, Agnew had accepted bribes and kickbacks from contractors doing business with the state. In December 1973, with the approval of both houses of Congress, Nixon appointed House Minority Leader Gerald Ford of Michigan, America’s first unelected vice president.¹²

      Even before the release of the tapes, though, another turn of events had already wounded Nixon beyond recovery. On Saturday evening October 20, 1973, in what would go down in history as the “Saturday Night Massacre,” President Nixon ordered Attorney General Elliot Richardson to fire Cox; Richardson refused to obey what he believed to be an illegal order and resigned. Deputy Attorney General William D. Ruckelshaus also refused to carry out what he too believed was an illegal order and he resigned. Solicitor General Robert H. Bork then complied with the president’s order and became the acting attorney general.

      A Time magazine cover story called the massacre “one of the gravest constitutional crises,” in presidential history. It spurred outrage in Congress across the aisles and for the first time, polls showed that a plurality of the American people favored the president’s impeachment. On November 15, 1973, federal District Judge Gerhard A. Gesell ruled that, absent a showing of gross misconduct as required in the regulation establishing the special prosecutor’s office, the dismissal of Cox was illegal. Two days later at a nationally televised press conference an increasingly desperate Nixon pleaded, “I’m not a crook. I’ve earned everything I’ve got.”¹³

      The firing proved to be of no avail to Nixon, though. Nixon ordered his compliant Acting Attorney General Robert Bork to replace Cox with Texas attorney Leon Jaworski—a former “Democrat for Nixon.” Although neither a law professor nor an Ivy Leaguer, Jaworski wasn’t dumb, corrupt, or compromised. He continued to investigate faithfully the Watergate scandal and pursue the tapes.

      Who would be the Cox or Jaworski in an investigation of Donald Trump? Or the Ken Starr who later pursued Bill Clinton? Currently, the attorney general appoints a special prosecutor. But Trump has lost his security blanket in his loyalist Attorney General Jeff Sessions of Alabama. On March 2, 2017, Sessions recused himself from investigating the connections between Russia and the Trump team, after a Russia-related scandal of his own. Trump’s nominee for Deputy Attorney General, career prosecutor Rod Rosenstein, will take over the probe. Notably, in an Op Ed during the campaign co-authored with several other Trump backers, Sessions called for a special prosecutor to investigate Hillary Clinton.¹⁴

      If a Special Prosecutor is appointed, even one seemingly sympathetic to the administration, the Jaworski example shows that she or he might respond in unpredictable ways. And members of Congress will be monitoring any investigation. Even the most self-assured of prosecutors may be loath to tangle with Senators Elizabeth Warren or John McCain.¹⁵

      In fighting a subpoena to surrender the White House tapes to the Special Prosecutor, Nixon’s attorneys argued for an absolutist interpretation of presidential power, just as Trump would in defending his travel ban. The courts, his attorneys argued, cannot review a presidential decision based on his “executive privilege” to withhold “confidential conversations between a President and his close advisors.” The Supreme Court unanimously disagreed, pointing out that “Our system of government ‘requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch.’ ”¹⁶

      The release of the tape recordings—clearly showing that Nixon obstructed justice in covering-up the break-in and through other violations of law—made the most cut and dry case for impeachment in the history of the presidency. The depth and breadth of the scandal astonished even fellow Republicans. “The dread word ‘Watergate,’ is not just the stupid, unprofitable, break-in attempt,” said Republican senator Ed Brooke. “It is perjury. Obstruction of justice. The solicitation and acceptance of hundreds of thousands of dollars in illegal campaign contributions. It is a pattern of arrogance, illegality and lies which ought to shock the conscience of every Republican.”¹⁷

      In July 1974, members of both parties in the Judiciary Committee voted three articles of impeachment against the president. Two of the articles indicted the president for the crimes of obstructing justice and ignoring subpoenas issued by the House Judiciary Commission. Another article charged the gross abuse of presidential power, a likely ground for an impeachment of President Trump.

      A week after the Committee’s vote, former GOP presidential nominee Barry Goldwater, Senate Minority Leader Hugh Scott, and House Minority Leader John Rhodes warned Nixon of an inevitable impeachment by the House and conviction by the Senate, where Republican support for acquittal had dwindled to a few diehards. Two days later, the ever-pragmatic Nixon resigned the presidency, the first and last president to do so. Ever the dissembler, Nixon said he resigned to put “the interest of America first” and although some of his judgments “were wrong, they were made in what I believed at the time to be the best interest of the Nation.”¹⁸

      In his later years, Nixon seemed to have learned nothing from Watergate, but continued to believe that his problems resulted not from his own misdeeds, but from the failure of his cover-up. In 1987, during the Iran-Contra scandal, Nixon privately advised President Ronald Reagan: “Don’t ever comment on the Iran-Contra matter again. Have instructions issued to all White House staffers and Administration spokesman that they must never answer any question on or off the record about that issue in the future.”¹⁹

      THE ‘UNWRITTEN’ ARTICLES OF IMPEACHMENT: TREASON AND A CRIME AGAINST HUMANITY

      The House Judiciary Committee, caught up in the events of Watergate and lacking full information, did not impeach Nixon for arguably his two most serious crimes: treason and a crime against humanity. During his campaign for the presidency in 1968, Nixon claimed that he had a “secret plan” to end the War in Vietnam. But like Trump’s secret plan to defeat ISIS that he promoted in 2016, Nixon’s plan was political rhetoric lacking in substance. What Nixon really feared was a peace deal before Election Day that would steal his thunder and snatch away his last chance for political redemption. Defeat was not an option, and in preemptive response, Nixon illegally meddled in the peace process as a still-private citizen, thereby committing a serious and impeachable offense.

      Although peace in Vietnam may have been a long shot, Nixon had tried to sabotage negotiations, putting at risk for his own political ends the lives of many thousands of Americans and Asians. Nixon pressured the South Vietnamese government to stall the peace process and await a better deal under his presidency. Historian John A. Farrell said that Nixon’s “apparently criminal behavior” during the campaign