Downside of Watergate: We found crimes. Now people think that’s what it takes to impeach.


David M. Dorsen

Opinion contributor

Published 5: 00 AM EDT Nov 1, 2019

When House Republicans voted unanimously against the impeachment resolution setting rules for investigating President Donald Trump, they reflected not just blind partisanship but also a misunderstanding, perhaps willful, of what constitutes grounds for impeachment. And Watergate is partly to blame for that.

The 1970s Watergate investigators were successful in ferreting out wrongdoing, including the massive obstruction of justice that emanated from the highest levels of the executive branch of our government. The news media initially uncovered facts demonstrating that those responsible for the Watergate burglary and its cover-up went far beyond the arrested burglars. The Senate Watergate Committee presented a comprehensive picture to the public that has withstood the test of time. The special prosecutor succeeded in getting the Supreme Court to order President Richard Nixon to produce all his tape recordings (including the “Smoking Gun Tape” of June 23, 1972). The House Judiciary Committee forced Nixon to resign. And the special prosecutor convicted Nixon’s top aides.

So what is Watergate’s negative legacy?

False sense that criminality is required

Because the investigations were so thorough and the wrongdoing, which included bribery as well as obstruction of justice, so severe, some of Trump’s supporters are arguing that a crime is essential to an impeachment and conviction, and that abuse of the president’s constitutional powers that does not constitute crime does not rise to the level of an impeachable offense. After all, White House counsel John Dean famously talked to Nixon about paying $1 million (in 1973 dollars) to continue to buy silence from the Watergate burglars —  evidence of a crime right there.

See also  Trump retweets criticism of Joe Biden for wearing mask

But the premise is false. 

As assistant chief counsel to the Senate Watergate Committee, I was part of the investigation. Our success at demonstrating the criminality of Nixon’s actions created a sense that criminality is required. Yet it is absolutely clear that criminal conduct is not a requirement and that abuse of presidential power is sufficient.

The constitutional standard is “high crimes and misdemeanors,” which is a term of art that the Founders borrowed from England and is satisfied by proof of a serious abuse of power. Sacrificing the national interest for personal gain or aggrandizement satisfies the constitutional standard, especially when it is accompanied by lies, threats and other misconduct. The term is archaic, but its meaning is clear.

Survival of republic was at stake

Originally, the framers inserted into the draft constitution terms like “malpractice or neglect of duty.” They changed the language to require more serious conduct, but did not change the nature of the impeachable offense. It was always connected to the official duties of the president, not to crimes committed by ordinary citizens. The framers wanted a government that would not kowtow to the powerful European powers. The very survival of the republic was at stake.

To restrict the constitutional language to ordinary crimes demeans the work of our Founders, who sought to create a virtuous nation built on democratic principles. By saying that a president can be impeached for a run-of-the-mill embezzlement while going scot-free for selling out the country to a foreign power for personal gain, defenders of Trump are trivializing the founding generation.

David M. Dorsen, formerly assistant chief counsel of the Senate Watergate Committee and an assistant U.S. attorney in the Southern District of New York, is the author of “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions” and, most recently, “Moses v. Trump, a contemporary novel.” Follow him on Twitter: @DavidDorsen

Read More

Leave a Reply