A Constitutional Stress Test

Forty-five years ago in July, the House Judiciary Committee met for six days of televised hearings to vote on Articles of Impeachment for Richard Nixon. I was a graduate student then and like the rest of the nation had been transfixed for over a year by the unfolding Watergate scandal.

Woodward and Bernstein reporting on a break-in at Democratic headquarters that was soon tied to to CREP — the committee to re-elect the president. Senate hearings in which the ranking Republican, Howard Baker, kept asking “What did the president know and when did he know it?” He clearly thought a bunch of over-zealous underlings were the villains and Nixon would never take the fall. How wrong you can be.

Then the Saturday Night Massacre, stonewalling on turning over documents and tapes, a trail that wound up at the Oval Office, and the Supreme Court ruling that Nixon had to obey the law.

By then, 48 henchmen were headed for prison including many of the arrogant, administration conspirators and perjurious witnesses — CIA man Hunt, FBI agent Liddy, Haldeman, Ehrlichman, a Secretary of Commerce turned bagman, Stans, two former Attoneys General, Mitchell and Kleindienst, and even whistleblower John Dean.

In late July, a scheduled birthday dinner was delayed long enough for three generations of my family to watch as the Judiciary Committee voted to pass a second article of impeachment by a vote of 21 Democrats and 7 Republicans yea and ten Republicans nay.

It essentially accused the president of obstructing justice by refusing to comply with congressional subpoenas seeking evidence of other high crimes and misdemeanors. Cover-ups, it turned out, were also impeachable offenses.

A week later the smoking gun tape was made public, two days after that Republican Senators visited the White House to tell Nixon he didn’t have the votes to survive a trial in the Senate. The next day he resigned. The day after that he was gone.

Now we find ourselves in the midst of another such drama which, eerily, also centers around a president’s attempts to win elections by means of dirty tricks. John Dean is still around and has pronounced Trump’s actions worse than Nixon’s. At least Tricky Dick didn’t enlist the aid of foreign enemies.

But the similarities are striking. Again Republicans are denying reality and circling the wagons, again a pattern of refusing to produce evidence, a resort to the courts, a Judiciary committee investigation, and the possibility of articles of impeachment accusing the president of failing to live up to his oath, to perform his constitutional duties, and to comply with the law.

But many things are quite different and suggest a similar outcome is far from assured. Minds then could be changed by events, as the poll numbers for Nixon suggest. In May of 1973, before the hearings began, Nixon’s approval rating was 50% and even after the damning Senate hearings that summer just 19% of the people thought he should be removed from office. After the Saturday Night Massacre in October 1973, those favoring removal reached 30%, but after the impeachment vote and the release of the smoking gun tape 57% thought he had to go. He went.

Would that happen today? Then, Americans expected their government to work, their president to be reputable, and took maladministration seriously. Less so today. Nixon was faced with impeachment and removal for political dirty tricks and an illegal cover-up. What would have happened if he’d been in cahoots with a foreign adversary?

Then, neither House of Congress was controlled by the president’s party. Today, the Senate is and under the leadership of a man who ws willing to hijack a Surpeme Court seat may not be counted on to perform it’s duty in the event of a trial.

The Supreme Court in 1974 was made up of four justices appointed by Democratic presidents and five justices by Republican presidents, four of them by Nixon himself, and yet they forced him to comply wth the law. Today, the court is also split five Republican appointees, two appointed by Trump, and four Democratic, but the selection process has become far more partisan and whether the court can be relied on to be apolitical in cases with impeachment implications is very uncertain.

The information environment has also changed, of course. Then the news outlets embraced evidence based reporting. Today there are news channels and internet outlets dedicated to partisan propaganda, conspiracy theories, smears and fan fiction. Social media, as we have learned, is daily spreading disinformation from foreign tyrants in disguise. This has enabled Trump to bamboozle his base in ways Nixon could not. So, has the public mind been so infected by all the cries of fake news, witch hunt, deep state that truth is now subjective?

Perhaps. For three years a lawless, dishonest president has been accepted by somewhere around 45% of the electorate and a shameful 100% of elected Republicans as credible. Now, however, depending on how recent the poll, 68% of the people believe acdeptig foreign dirt on political oppon ent is unacceptable. As many as 57% of the people favor an impeachment inquiry and somewhere between 46 and 49% favor impeachment and removal. Only around 20% of Republicans agree, but the number is inching up. Can the scales be falling from Trumpian eyes?

Maybe, but there’s still the most concerning change in our country since 1974, the lack of a shared body of historical knowledge concerning our republic and an appreciation of what used to be taught as civics. Many citizens have only the vaguest notion of the contents of our Constitution and its origins. If they did they would know that it was written by men who were aware of the failures of democratic governments from Greece and Rome up to their own day.

They also had an appreciation for human frailty, the danger of demagogues, and the likelihood for self-interest to overwhelm public interest in both citizens and those who aspire to govern them. Out of an abundance of caution, they set out to erect a governing framework that would guard against mischief. Yet Trump has tried at every turn to undermine that structure and his party has enabled him, until now.

One need only glance through the pages of the Federalist to find fair warning from Hamilton and Madison of what can go wrong. The latter famously said “if men were angels, no government would be necessary.” Since they aren’t, safeguards are required.The drafters had participated in a war of independence from a man they regarded as a tyrannical monarchy. To guard against the rise just such monarch or a Caesar or a Catiline, they provided for checks and balances — including impeachment.

To allay fears that a president might overstep with impunity, Hamilton said in Federalist #69 that a president would not be a king or khan but “would be liable to be impeached, tried, and upon conviction…removed from office; and would afterward be liable to prosecution and punishment in the ordinary course of law.” In short, a mere mortal answerable to the rule of law.

They were far from naive about possible difficulties with such a remedy, which Madison addressed in #65. He conceded an impeachable offense might “agitate the whole community” and that the responsibility to remove would be entrusted to the other branches which would inevitably represent “pre-existing factions.” An impeachment would “enlist all their animosities, partialities, influence and interest on one side or the other.”

That was risky since it meant the impeachment decisions might be made “more by the comparative strength of the parties than by the real demonstrations of guilt or innocence.”

The Father of the Constitution thus acknowledged that it was not clear whether the Supreme Court could be relied on to preside impartially over a trial or the senators to honestly act as jurors in weighing the evidence.

He wasn’t without qualms, nor should we be — given the behavior of the other two co-equal branches of government over the past three years.

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