ArtII.S4.2.3.5 Impeachable Offenses: Effort to Impeach Richard Nixon

Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The impeachment investigation and ensuing resignation of President Richard Nixon stands out as a profoundly important experience informing the standard for the impeachment of presidents.1 Although President Nixon was never impeached by the House or subjected to a trial in the Senate, his conduct exemplifies for many authorities, scholars, and the general public the paradigmatic case of impeachable behavior in a President.

Less than two years after a landslide reelection as President, Richard Nixon resigned following the House Judiciary Committee's adoption of three articles of impeachment against him.2 The circumstances surrounding the impeachment of President Nixon were sparked on June 17, 1972, by the arrest of five men for breaking into the Democratic National Headquarters at the Watergate Hotel and Office Building. The arrested men were employed by the Committee to Re-Elect the President (CRP), a campaign organization formed to support President Nixon's reelection.3

In the early summer of 1973, Attorney General Elliot Richardson appointed Archibald Cox as a special prosecutor to investigate the connection between the five burglars and CRP. Likewise, the Senate Select Committee on Presidential Campaign Activities initiated its own investigation.4 After President Nixon fired various staffers allegedly involved in covering up the incident, he spoke on national television disclaiming knowledge of the cover up. However, the investigations uncovered evidence that President Nixon was involved, that he illegally harassed his enemies through, among other things, the use of tax audits, and that the men arrested for the Watergate break-in—the plumbers unit, because they were used to plug leaks considered damaging to the Nixon Administration—had committed burglaries before.5 Eventually a White House aide revealed that the President had a tape recording system in his office, raising the possibility that many of Nixon's conversations about the Watergate incident were recorded.6

The President refused to hand over such tapes to the special prosecutor or Congress. In his capacity as special prosecutor, Cox then subpoenaed tapes of conversations in the Oval Office on Saturday, October 20, 1973. This sparked the sequence of events commonly known as the Saturday Night Massacre.7 In response to the subpoena, President Nixon ordered Attorney General Elliot Richardson to fire Special Prosecutor Cox. Richardson refused and resigned. Nixon ordered Deputy Attorney General William D. Ruckelshaus to fire the special prosecutor, but Ruckelshaus also refused to do so and resigned. Solicitor General Robert Bork, in his capacity as Acting Attorney General, then fired the special prosecutor.8 Nixon eventually agreed to deliver some of the subpoenaed tapes to the judge supervising the grand jury. The Justice Department appointed Leon Jaworski to replace Cox as special prosecutor.

The House Judiciary Committee began an official investigation of the Watergate issue and commenced impeachment hearings in April 1974.9 On March 1, 1974, a grand jury indicted seven individuals connected to the larger Watergate investigation and named the President as an unindicted coconspirator.10 On April 18, a subpoena was issued, upon the motion of the special prosecutor, by the United States District Court for the District of Columbia requiring the production of tapes and various items relating to meetings between the President and other individuals. Following a challenge to the subpoena in district court, the Supreme Court reviewed the case. On July 24, 1974, the Supreme Court affirmed the district court's order.11

In late July, following its investigation and hearings, the House Judiciary Committee voted to adopt three articles of impeachment against President Nixon.12 The first impeachment article alleged that the President obstructed justice by attempting to impede the investigation into the Watergate break-in.13 The second charged the President with abuse of power for using federal agencies to harass his political enemies and authorizing burglaries of private citizens who opposed the President.14 The third article accused the President of refusing to cooperate with the Judiciary Committee's investigation.15

The Committee considered but rejected two proposed articles of impeachment. The first rejected article concerned receiving compensation in the form of government expenditures at his private properties in California and Florida – which allegedly constituted an emolument from the United States in violation of Article II, Section, 1, Clause 7 of the Constitution – and tax evasion.16 Those Members opposed to the portion of the charge alleging receipt of federal funds argued that most of the President's expenditures were made pursuant to a request from the Secret Service; that there was no direct evidence the President knew at the time that the source of these funds was public, rather than private; and that this conduct failed to rise to the level of an impeachable offense.17 Some Members opposed to the tax evasion charge argued that the evidence was insufficient to impeach; others that tax fraud is not the type of behavior at which the remedy of impeachment is directed.18

The second rejected article accused the President of concealing from Congress the bombing operations in Cambodia during the Vietnam conflict.19 This article was rejected for two primary reasons: some Members thought (1) the President was performing his constitutional duty as Commander-in-Chief and (2) Congress was given sufficient notice of these operations.20

President Nixon resigned on August 9, 1974, before the full House voted on the articles.21 The lessons and standards established by the Nixon impeachment investigation and resignation are disputed. On the one hand, the behavior alleged in the approved articles against President Nixon is arguably a paradigmatic case of impeachment, constituting actions that are almost certainly impeachable conduct for the President.22

On the other hand, the significance of the House Judiciary Committee's rejection of certain impeachment articles is unclear. In particular, whether conduct considered unrelated to the performance of official duties, such as the rejected article alleging tax evasion, can constitute an impeachable offense for the President is disputed. During the subsequent impeachment of President Bill Clinton, for example, the majority and minority reports of the House Judiciary Committee concerning the Committee's impeachment recommendation took different views on when conduct that might traditionally be viewed as private or unrelated to the functions of the presidency constituted an impeachable offense.23 The House Judiciary Committee report that recommended articles of impeachment argued that perjury by the President was an impeachable offense, even if committed with regard to matters outside his official duties.24 In contrast, the minority views contained in the report argued that impeachment was reserved for conduct that constitutes an egregious abuse or subversion of the powers of the executive office.25 The minority noted that the Judiciary Committee had rejected an article of impeachment against President Nixon alleging that he committed tax fraud, primarily because that related to the President's private conduct, not to an abuse of his authority as President.26

Footnotes

  1.  Jump to essay-1For a more detailed account of the Watergate Scandal, see Stanley I. Kutler, The Wars of Watergate (1990).
  2.  Jump to essay-2Carroll Kilpatrick, Nixon Resigns, Wash. Post (Aug. 9, 1974), https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/080974-3.htm.
  3.  Jump to essay-3Kutler, supra note 1, at 187–211.
  4.  Jump to essay-4Kutler, supra note 1, at 323–49; Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 255–56 (1999) .
  5.  Jump to essay-5Tassel & Finkelman, supra note 4, at 255–56; Kutler, supra note 1, at 111–16, 351–72.
  6.  Jump to essay-6Tassel & Finkelman, supra note 4, at 256–57.
  7.  Jump to essay-7Jerry Zeifman, Without Honor: Crimes of Camelot and the Impeachment of President Nixon 59 (1995).
  8.  Jump to essay-8Carroll Kilpatrick, Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit, Wash. Post (Oct. 21, 1973), https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/102173-2.htm.
  9.  Jump to essay-9Tassel & Finkelman, supra note 4, at 258–59.
  10.  Jump to essay-10United States v. Nixon, 418 U.S. 683, 686–87 (1974).
  11.  Jump to essay-11Id. at 713–14 (1974).
  12.  Jump to essay-12H. Comm. on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, 93d Cong., 2d Sess., H.R. Rep. No. 93-1305, at 6–11 (1974).
  13.  Jump to essay-13Id. at 1–2.
  14.  Jump to essay-14Id. at 3–4.
  15.  Jump to essay-15Id. at 4.
  16.  Jump to essay-16Id. at 217–19.
  17.  Jump to essay-17Id. at 221.
  18.  Jump to essay-18Id. at 223.
  19.  Jump to essay-19Id. at 220–26.
  20.  Jump to essay-20Id. at 219.
  21.  Jump to essay-21Kilpatrick, Nixon Resigns, supra note 2.
  22.  Jump to essay-22Michael J. Gerhardt, The Lessons of Impeachment History, 67 Geo. Wash. L. Rev. 603, 604 (1999).
  23.  Jump to essay-23Compare H.R. Rep. No. 105-830, at 110–18 (1998), with id. at 204–07 (minority views).
  24.  Jump to essay-24See H.R. Rep. No. 105-830, at 108.
  25.  Jump to essay-25Id.
  26.  Jump to essay-26Id.