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Congressman Kucinich's Impeachment Resolution, the Parallel to Nixon, and Why Even Nixon's Defenders Finally Abandoned Him


Friday, Jul. 25, 2008

Before I found myself wrestling with a nasty summer cold/flu bug, I had planned to travel to Washington to testify before the House Judiciary Committee, which is holding a hearing today on “Executive Power and Its Constitutional Limitations.”

While this was not billed as an impeachment hearing, it was my understanding that I would follow the testimony of Congressman Dennis Kucinich of Ohio, who introduced a new impeachment resolution on July 10. The resolution states that President Bush “deceived Congress with fabricated threats of Iraq Weapons of Mass Destruction to fraudulently obtain support for an authorization for the use of force against Iraq and [he] used that fraudulently obtained authorization” to proceed to war in Iraq.

Given the fact that Bush will be out of office in less than six months, it is not likely that the Kucinich resolution will receive the consideration it deserves. This is unfortunate. It has been clear to me since 2004, when I wrote Worse Than Watergate: The Secret Presidency of George W. Bush, in which I analyzed the basis for the very charge that Kucinich has now leveled, that Bush’s actions with regard to Congress – in essence, telling Congress and the American people a deadly lie involving the nation’s blood and treasure – constituted, without question, a “high crime” and impeachable behavior.

It struck me that given my knowledge of the Nixon presidency, and because few in Congress today realize that Nixon was sent packing for a far lesser lie, I might focus my testimony on why Nixon was removed from office. In short, I might be able to add some perspective for the Kucinich resolution. In this column, I will also offer the perspective my experience with Nixon affords, as I consider the case for impeaching Bush.

Congress Is Well-Aware Of Bush’s Imperial Presidency and Its Abuses of Power

Based on conversations with members of the House and Senate, and countless public statements, there is no question that Congress understands that the Bush/Cheney presidency treats its members as if they were, and should be, a decidedly lesser branch. Nixon did the same, but with a difference. When Nixon was president, Congress reached a point where it was determined to end his abuses of presidential power. Yet pointing out this out would have been testifying to the obvious, and there is nothing I could say that would give those on Capitol Hill without spine the fortitude needed to take action. As with Nixon, Congress will have to stand up to the bully at the other end of Pennsylvania Avenue on its own – or never do so.

Also, there is no shortage of witnesses who can discuss the abuses of power by Bush and Cheney, to create a record of how they have gone beyond established constitutional limitations. The examples are well-known: their excessive and unnecessary secrecy, their incessant stonewalling and refusal to provide information to Congress, the issuance of executive orders that have rewritten important laws (like Bush’s virtual repeal-by-executive-order of the Presidential Records Act of 1978), their politicization of the Department of Justice, their striking disregard for civil liberties, their exclusion of Congress from the necessary national security information when it votes on legislation like the FISA amendments (leaving Congress with no idea what the changes do or do not do), their deceiving Congress about the reasons for war in Iraq, their relentless expansion of purported executive prerogatives, their ongoing politicization of the federal judiciary, their violations of longstanding treaties in order to embrace a policy of torture, their utilization of the concocted theory of executive power known as “the unitary executive theory,” and their endless signing statements accompanying legislation and claiming the right to not enforce laws enacted and signed by the president. And this is to name merely a few of the matters with which the Congress is painfully familiar.

Based on prior subcommittee hearings, the House Judiciary Committee knows well that the checks and balances of the Constitution do not work when the Executive Branch has made itself preeminent among its co-equals, and made a mockery of the separation of powers, as Bush and Cheney have done. Nor is there any real mystery on Capitol Hill about how this happened, for it is the clear result of the action – and inaction – of the conservative Republicans in Congress who assisted Presidents Reagan, Bush I, and Bush II with their increasingly radical expansion of presidential powers. Ironically conservatives once opposed an excessively powerful presidency but they now favor it because they believe they can more easily win the White House than control of Congress.

Neither the federal courts nor voters have been inclined to rein in an outsized American presidency under the Republicans, because the federal judiciary is dominated by conservative Republicans who think an all-powerful president is good, and the average American voter does not have a clue about the cost he or she pays for an imperial presidency. So it has come down to the congressional Democrats (and a few moderate Republicans) to deal with the bloated presidential powers that have disrupted the Constitution’s balance.

Again, the House Judiciary Committee would not need me to tell them how dire the situation has become, or how impotent the Congress has grown as Republicans game the system. While many Democrats on the committee, I am sure, would agree with my analysis, the ability to act hinges on Republicans: Only if Republicans understand the institutional damage they are tolerating is there any true chance of remedial action.

Accordingly, I thought if I could merely make the point that conservatives, at one point, decided that they could not tolerate Nixon’s imperial behavior, and explain exactly why they came to that decision, it might clear the Republicans’ focus to deal with Bush and Cheney. Unfortunately, explaining this Nixon-versus-Congress history would be no easy task, for I discovered how ignorant current members of Congress are about Watergate when testifying before the Senate Judiciary Committee a few years ago. At that hearing, South Carolina Republican Senator Lindsay Graham made statements and asked questions about Watergate that were less informed that I get from today’s average high school student.

But I did have a thought about how I might place Watergate in perspective for uninformed members of Congress, particularly Republicans; I thought it would be helpful to report a conversation I had with Nixon’s most articulate, knowledgeable, and persuasive defender – a conservative Republican about whom members of the committee may have heard.

When Nixon’s Defenders Abandoned Him, and Why They Did So

Only Democrat John Conyers of Michigan, who is now the chairman of the House Judiciary Committee, was involved in the 1974 proceedings to impeach Nixon. Chairman Conyers would recall well the member of the committee who had provided Nixon his most vigorous and effective defense: Charles E. Wiggins of California.

Wiggins, recognized by his colleagues as one of the better lawyers on the committee, made a powerful case that a president should only be impeached if he had committed a crime, and at the time there was no evidence directly linking Nixon to criminal conduct. However, when the Supreme Court ruled against the president in United States v. Nixon and forced the release of the “smoking gun” tape, it revealed that Nixon had been involved in the Watergate cover-up from the outset. Wiggins, and most other conservatives, then reached the “painful conclusion” that Nixon had to go. In short, conservatives wanted nothing to do with a liar.

This is not speculation on my part; rather, there is more to the story. I had known Chuck Wiggins from my days as Chief Minority Counsel of the House Judiciary Committee and although I had not seen him since my testimony as White House counsel in 1974 during the Nixon impeachment proceeding, we met again at Hastings Law School for a symposium in early February 2000 to examine Watergate 25 years after it all had happened. In 1984, President Reagan had appointed Wiggins to serve as a judge on the U.S. Court of Appeals for the Ninth Circuit. He was still seated as a senior judge, notwithstanding the fact he was almost totally blind.

(Remarkably, Wiggins traveled alone, with no seeing-eye dog or walking stick. He told me that he could still make out images so that he did not walk into walls or people, and that he could still read with the assistance of an electronic magnifying device that enlarged books and papers, but that he would soon lose all sight.) As the Hastings conference was coming to an end, we discovered we were both on the same flight back to Los Angeles, and decided to travel together, so we could continue our conversation on the topics the conference raised.

Wiggins’s View of Nixon’s Misconduct: Why the Lies Led Even Nixon’s Defenders to Change Their Minds

When the flight back to Los Angeles was delayed, we found a quiet corner at the San Francisco terminal. Judge Wiggins told me that, during the Watergate era, he, along with a number of other conservative Republicans and Democrats, was preparing to mount a powerful defense of Nixon on the House floor, and that they had good reason to believe they had a serious shot a defeating the efforts to impeach him – until the Supreme Court ruled that Nixon had to release his tapes, and they found they had been lied to about Nixon’s true role.

Wiggins believed that the lawyers representing Nixon had done a terrible job, and that Nixon should have claimed not merely “executive privilege,” but also taken the Fifth Amendment and invoked the State Secrets privilege as well to block access to his tapes. He had every right to do so, and had he done so, he would not have been forced from office. It would have been bad press, but he would have survived. (I agree with Judge Wiggins’s analysis.)

Wiggins had no doubt that the June 23rd tape showed that Nixon had participated in conspiracy to obstruct justice regarding the Watergate investigation. However, Wiggins also thought there was an argument to be made that a president could not obstruct a federal investigation, since he himself had the theoretical power and authority to establish the parameters of that investigation. In addition, it could also be argued that Nixon’s actions on June 23, 1972 had been taken based on the advice of his counsel (who believed national security issues were involved) and of his former attorney general (who similarly believed national security issues might be at stake).

As for the other charges in the articles of impeachment, Wiggins said he and the other Nixon defenders had planned to make fools of the Democrats by showing that everything that had been set forth in the articles had been done by Democratic presidents many times over. It was the classic defense: Two wrongs don’t make a right, but in law and politics they make a respectable precedent. But what neither Wiggins nor other Nixon apologists were prepared to defend was Nixon’s lying to Congress and the nation.

After the smoking gun tape surfaced, none of these various defenses and strategies were relevant, because no member was prepared to defend Nixon’s obvious lies about Watergate. As today’s hearings continue, it will be interesting to see if any members of Congress are prepared to defend Bush and Cheney’s lies about taking the nation to war in Iraq. Disturbingly, it has been clear for some time that Bush and Cheney did indeed lie – and that their lies fit within a clear, extensive pattern of abuse of power. Yet condemnation from Congressional Republicans has yet to be heard. Sadly, it seems possible that today’s Republicans -- unlike Wiggins and the other Nixon apologists who changed their minds when confronted with proven presidential lies -- have no moral lines that they will draw.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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