The Case for Impeachment

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 “may be more reprehensible than anything Nixon did in Watergate,” because of “the human lives at stake and the decade of carnage that followed in Southeast Asia.”20

President Lyndon B. Johnson, who had wiretapped Nixon’s telephone, knew of Nixon’s traitorous conduct. He overheard Nixon declare that “we’re going to say to Hanoi, ‘I [Nixon] can make a better deal than he [Johnson] has, because I’m fresh and new, and I don’t have to demand as much as he does in the light of past positions.’ ”In a conversation with Republican Senate Minority Leader Everett Dirksen, Johnson said, “This is treason … that they’re contacting a foreign power in the middle of a war.”21 Nixon had at worst committed treason and at best violated federal law. The Logan Act of 1799 forbids unauthorized citizens from contacting “any foreign government or any officer or agent thereof with intent to influence the measures or conduct of any foreign government.” Violation of the law is a felony, punishable by fines and imprisonment. For the first time since the Nixon era, talk of possible treason and violations of the obscure Logan Act have arisen again with new revelations of contacts between members of the Trump team and Russian officials.22

The Judiciary Committee passed over another potential article charging Nixon with his worst offense, a “crime against humanity” for his illegal, secret war in Cambodia. The concept of a crime against humanity originated during the Nuremberg War trials of Nazi leaders in 1945–1946. As opposed to a specific war crime like torture, a crime against humanity is generally regarded as a widespread or systematic attack directed against any civilian population or an identifiable part of a population, with no exemption for heads of state. Nixon’s covert bombing of Cambodia falls within that rubric.23

In 1965, the violence of America’s war in Vietnam spilled into neighboring Cambodia when President Johnson began a secret but limited bombing campaign against sanctuaries in Cambodia for the Army of North Vietnam and the Communist Vietcong guerillas. President Nixon escalated the raids into an intense carpet-bombing of Cambodia over four years. “There is no limitation on mileage and there is no limitation on budget,” he said. The U.S. dropped a greater tonnage of TNT on this small nation than on all its enemies during World War II.24

The carpet-bombing that devastated Cambodia did nothing to help the American war effort, but it killed some 50,000 to 150,000 civilians, and tragically pushed many young men and women into the camp of the Khmer Rouge Communist guerrillas led by the French-educated Pol Pot. During its brief reign from 1975 to 1979, the Khmer Rouge directly or indirectly killed some 1.5 million Cambodians in a population of just 8 million.25

Nixon’s bombing of Cambodia was illegal in both its conception and execution. He lacked authorization from Congress to bomb Cambodia and kept the operation secret, covering it up with lies. “It’s the best kept secret of the war!” Nixon told Senate hawk John Stennis of Mississippi in April 1970. Days later, Nixon lied to the American people at a press conference, saying that U.S. policy “has been to scrupulously respect the neutrality of the Cambodian people.” Once the bombing became public, Nixon draped himself in the justification of “national security,” even though he had earlier admitted that the cumulative impact of all his bombings in Southeast Asia was “zilch.”26

One of the most consequential questions facing the Trump presidency is whether he will commit a crime against humanity by exacerbating climate change, and posing an existential threat to humanity. In 2016, the International Criminal Court announced that it would expand its focus to “crimes against the environment,” which would include catastrophic climate change.27

THE ROAD TO IMPEACHMENT

Nixon’s first political campaign, a successful run for Congress in 1946, would mirror in many ways Trump’s first campaign—for president of the United States. Fighting for average Jane and John Doe against a corrupt and even treasonous Washington establishment, Nixon campaigned as the outsider. He exploited voter fear and resentment by smearing his opponent Jerry Voorhis, a middle-of-the road Democrat, as a Communist sympathizer.28

Nixon rode his anti-Communism all the way to a seat in the U.S. Senate in 1950, defeating former movie star Helen Gahagan Douglas, who he branded as a Communist sympathizer. He distributed literature, printed in black ink on pink paper, with the dark warning that Douglas voted in lockstep with the socialist member of Congress Vito Marcantonio. Douglas forever became known as the “Pink Lady,” but Nixon couldn’t shake the name she had plastered on him: “Tricky Dick Nixon.”29

Right-wing extremists rallied to Nixon’s cause. Gerald L. K. Smith, the notorious anti-Semite, exhorted voters to reject a woman “who sleeps with a Jew,” a reference to the fact that her husband, Melvyn Douglas, had a Jewish father and a Christian mother. Nixon repudiated Smith’s support, but the damage was done.30

In 2016, the outpouring of support for Donald Trump by anti-Semites, neo-Nazis, and white nationalists far exceeded what Nixon experienced. For these extremists, the advent of Trump has “been an awakening,” in the words of Richard B. Spencer, who some journalists credit with coining the term “alt-right” to describe his movement. Like Nixon, Trump belatedly and tepidly rejected such support, but he openly courted it by appointing Steve Bannon as his campaign manager and then his chief White House strategist.31

As the CEO of Breitbart News, Bannon bragged that “We’re the platform for the alt-right.” Under his watch, Breitbart belittled conservative editor Bill Kristol, as a “Renegade Jew.” It warned that “Political Correctness Protects Muslim Rape Culture.” It smeared the NAACP, saying, “NAACP Joins Soros Army Planning DC Disruptions, Civil Disobedience, Mass Arrests,” and glorified the Confederacy saying, “Hoist It High and Proud: The Confederate Flag Proclaims a Glorious Heritage.” It equated feminism with “cancer,” and warned of a “Dangerous Faggot Tour” coming to college campuses.32

In 1952, after Eisenhower tapped him for the second spot on his presidential ticket, the press reported that Nixon’s business backers had set up a secret slush fund for him. “Tricky Dick” defused the scandal and demonstrated his mastery of showmanship and the media by delivering a brilliant televised speech that rather framed himself as a humble, uncorrupted man of still-modest means. The clincher came when Nixon admitted to receiving one gift, his little dog, Checkers. With this so-called “Checkers speech,” the most-watched television event to date, Nixon pulled off his first political comeback and saved his place on Eisenhower’s ticket. Donald Trump would later prove to be Nixon’s equal and even his superior in exploiting free media.33

In 1960, Nixon easily won the Republican nomination for president, but lost narrowly to his former House colleague John F. Kennedy. Kennedy’s narrow margins of victory in Illinois and Texas prompted Republicans to challenge the vote count in court despite an official disavowal from Nixon, who refused to disparage American democracy and was already planning his next political resurrection. Nevertheless, GOP Representative from Minnesota and former missionary Walter Judd preached a sermon on voter fraud that foreshadowed Donald Trump’s cry against the same more than a half century later: “A party can still lose an election if it is not sufficiently alert and tough in policing registrations and voting booths and counting procedures to make certain that only legitimate votes are cast and all votes legitimately cast are honestly counted.”34

After losing the presidency in 1960, Nixon lost again two years later when he ran for governor of California. In his post-election press conference, Nixon delivered a 15-minute self-absorbed, Trump-style harangue against his enemies in the press, whom he blamed for his loss. “You won’t have Nixon to kick around anymore, because, gentlemen, this is my last press conference,” he said before walking away.35

Yet the resilient Nixon won another presidential nomination in 1968, when Michigan Governor George Romney, his closest rival, and the father of Mitt, wrecked his campaign by attributing earlier support for the War in Vietnam to “brainwashing” by American generals and diplomats. In his winning general election campaign, Nixon returned to the attack strategies that had served him well in his earlier campaigns for the U.S. House and Senate. Through his surrogate, vice presidential nominee Spiro Agnew, the governor of Maryland, he smeared his Democratic opponent Vice President Hubert Humphrey as “soft on inflation, soft on Communism, and soft on law and order.” Agnew belittled anti-war demonstrators as “spoiled brats” who “take their tactics from Castro and their money from Daddy.” Reprising the success of his “Checkers” speech Nixon expertly played the press, gaining wide-spread coverage often in carefully staged settings of his own choosing.36

Trump too is a creation of the media. He expertly played the media in his campaign as a show they could not ignore. According to a study by mediaQuant, in the year before the election, Trump received some $5 billion in free media coverage, compared to $3.2 billion for Hillary Clinton, an extraordinary edge of $1.8 billion.37

Once elected, Nixon’s paranoia, his obsession with secrecy and control, and his penchant for punishing enemies guided the organization of his administration. He ran his presidency through the National Security Council (NSC) and his White House staff, led by chief of staff Bob Haldeman and his aide John Ehrlichman. Trump too would place importance on his NSC and centralize decision-making in the White House.38

As President, Nixon’s loathing of any independent check on his presidency led to a deep-seated animosity toward the media. “The press is your enemy.” “Enemies,” he underscored. “Understand that? … Don’t help the bastards. Ever. Because they’re trying to stick the knife right in our groin.” Nixon threatened journalists with banishment from the White House. He went as far as to wiretap the phones of his own aides suspected of disloyalty and journalists he found particularly troublesome. His surrogate Agnew famously blasted the press as the “nattering nabobs of negativism.” “Our real game plan,” wrote political advisor Lyn Nofziger, “[is] making our own point in our own time and in our own ways that the press is liberal, pro-Democratic and biased.”39

IS THE LONG NIGHTMARE OVER?

Following Nixon’s resignation, Gerald Ford was now president, even though he had never been elected to any position higher than member of Congress from Grand Rapids, Michigan. In his most notable decision as president, Ford issued a full and unconditional pardon to Nixon for any crimes he may have committed against the United States. “Our long national nightmare is over,” he said. Ford was wrong. The nightmare of Watergate lives on in America’s collective memory, and resonates as a loud and clear warning to President Trump.40