How Lawmakers Have Drafted Articles Of Impeachment The Last 2 Times

Dec 6, 2019
Originally published on December 6, 2019 4:52 pm
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For the third time in modern history, the House Judiciary Committee is considering impeaching a president. NPR legal affairs correspondent Nina Totenberg looks back at the Nixon and Clinton impeachment proceedings to see what they can teach us about how the impeachment of President Donald J. Trump might play out.

NINA TOTENBERG, BYLINE: President Nixon's firing of the Watergate special prosecutor so shook the country that it became known as the Saturday Night Massacre.

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JOHN CHANCELLOR: The country tonight is in the midst of what may be the most serious constitutional crisis in its history.

TOTENBERG: Though Nixon was soon forced to hire another special prosecutor, the House of Representatives, by a staggering vote of 410-4, authorized the House Judiciary Committee to begin an impeachment inquiry. The chairman of the committee was Peter Rodino, new in the post and untested.

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PETER RODINO: The resolution authorizes and directs the committee...

TOTENBERG: He would, within months, become a national hero for his handling of the historic hearings.

TIMOTHY NAFTALI: Rodino's insight was that for the American people to accept impeachment, should it go in that direction, it would have to be a bipartisan impeachment.

TOTENBERG: Timothy Naftali was the founding director of the Richard Nixon Presidential Library and is a co-author of "Impeachment: An American History."

NAFTALI: Around Peter Rodino were a group of committee chairs who didn't really respect him. I'm talking about fellow Democrats. They thought he was too weak.

TOTENBERG: And they, along with some of the party's left wing, wanted to impeach Nixon not just for abuse of power and obstruction of justice.

NAFTALI: Rodino decides he can't work with those impeachers. He decides he needs his own team.

TOTENBERG: And he recruits a separate impeachment staff. Throughout, Rodino had to balance his own party's factions - the liberals on the one hand, and on the other, the conservative Democrats from the Deep South worried about upsetting their constituents. And he worked hard to get support from Republicans. Tim Naftali.

NAFTALI: The White House gets pressure from House Republicans because the White House is not assisting the inquiry. And when it reaches a point where the White House just won't turn over tapes, the committee votes to subpoena a president for the first time. Only three Republicans voted against that subpoena.

TOTENBERG: As the committee moved towards a public debate on articles of impeachment that summer, the youngest member of the committee was freshman Republican Bill Cohen of Maine.

BILL COHEN: Just before we were supposed to go public, Tom Railsback called me and said, why don't you come on over to my office tomorrow morning, have coffee and some donuts? Let's see what's going to happen when we go public. I said, who's going to be there? He said, I have no idea.

TOTENBERG: Railsback was a well-liked and respected Republican from a conservative district in Illinois, and when Cohen showed up, he was surprised to see who else was there - among them Caldwell Butler, a conservative Republican from Virginia, and Walter Flowers, a conservative Democrat from Alabama who'd at one time managed George Wallace's campaign for governor.

COHEN: Walter Flowers, in his true Southern drawl, said, look. Let's throw all this stuff we've been listening to up in the air and see what falls and what we can all agree to. We listed all the things that troubled us individually, and then we said, well, it's abuse of power and obstruction of justice. Those two articles we all agreed upon.

TOTENBERG: When it came time for the vote, the committee rejected three articles of impeachment. Nixon's personal tax evasion and another charge were considered personal, not an abuse of presidential power. The secret Cambodian bombing was considered a policy difference. Two articles, obstruction of justice and abuse of power, were approved by an overwhelming bipartisan vote. A third, failure to comply with the impeachment inquiry's subpoenas, passed by a narrower margin.

Just days afterwards, when Nixon obeyed a Supreme Court order to turn over the remaining tapes subpoenaed by the special prosecutor, it was all over. Support among House Republicans completely collapsed, and those who had voted against the articles of impeachment in committee changed their votes. Nixon resigned. Americans breathed a sigh of relief and told themselves that the system had worked. The Constitution had triumphed over rampant presidential abuse of power.

Nearly a quarter century later, there was far less consensus and more partisanship when Republicans voted to impeach President Clinton for lying under oath about his affair with a 22-year-old White House intern. This time, the House Judiciary Committee chairman was Republican Henry Hyde.

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HENRY HYDE: The matter before the House is a question of lying under oath; of the willful, premeditated, deliberate corruption of the nation's system of justice.

TOTENBERG: Barney Frank, then the ranking Democrat on the Judiciary Committee, recalls that fellow Democrats thought initially that Clinton was cooked.

BARNEY FRANK: Members of the Democratic caucus were anticipating being pressured to vote to get rid of him by their constituents, and the opposite happened. Public reaction with our constituents was, you don't impeach a guy for this.

TOTENBERG: Frank says Democrats didn't want to impeach Clinton, but they didn't want to exonerate him, either, so they decided to move to censure him. Some Republicans favored the idea, too, and there were negotiations to do something more than censure - to require, for instance, that Clinton pay a fine or make a formal admission.

But the GOP House whip - Tom DeLay, nicknamed The Hammer - had been driving the impeachment hard behind the scenes, and he didn't want to give any Republicans an out. So he maneuvered the House rules to prevent a vote on censure on the House floor. The House, mainly along party lines, approved two of the four articles of impeachment voted out of committee for perjury before a grand jury and obstruction of justice. The Senate would later acquit Clinton.

Twenty-one years later, the lesson that House Speaker Nancy Pelosi took from the Clinton impeachment was that unless she could get some Republican buy-in, the effort was doomed.

PETER BAKER: She said it ought to be compelling, overwhelming and bipartisan.

TOTENBERG: New York Times reporter Peter Baker is a co-author of "Impeachment: An American History."

BAKER: They do think it's compelling, and they do think it's overwhelming, but they don't have the bipartisan. And it may be that it's impossible in this day and age to get to bipartisan.

TOTENBERG: Indeed, the political transformation over the last 45 years has seen moderate Republicans and conservative Democrats become almost extinct. Extreme partisan gerrymandering has ushered in an era in which House members of both parties are less worried about winning over swing voters than they are about a primary opponent from their own party. So in the modern political world, does this mean that impeachment and the threat of impeachment is no longer a realistic check on presidential behavior?

BAKER: George H.W. Bush worried about impeachment if he went into the Gulf War without congressional approval.

TOTENBERG: Peter Baker.

BAKER: From the beginning of the republic to today, impeachment has served as kind of a deterrent against bad behavior. But if the lesson of this comes out that you're always going to be OK as long as your own party sticks with you, that changes that dynamic, I think.

TOTENBERG: Of course, nothing is entirely predictable. In 1998, Republicans confidently expected to add as many as two dozen seats to their majority in the November election. Instead, they lost four. Two years later, California's James Rogan, one of the impeachment House managers, was beaten by a state senator named Adam Schiff, now the chairman of the House Intelligence Committee which conducted the Trump impeachment inquiry.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.