The 1974 Playbook

Most of the articles of impeachment against Nixon could easily apply to Trump.

Richard Nixon sits at a desk.
President Richard Nixon announces his resignation in 1974.
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As the specter of impeachment creeps into conversations about where President Donald Trump’s scandals may be heading, it’s worth recalling the specific “high crimes and misdemeanors” that ousted Richard Nixon from office in 1974.

On July 27, the House Judiciary Committee approved, and voted to send the full House, three articles of impeachment, which charged Nixon with 15 separate acts of obstructing justice and abusing power. That—along with urgings from several Republican leaders—pressured Nixon to step down not quite two weeks later, on Aug. 9, before Congress could vote on the matter. (Another crucial factor: Vice President Gerald Ford decided to pardon him for any crimes he may have committed, thus protecting Nixon from indictment and prosecution after leaving the White House.)

It is indisputable that Trump has committed some of the same offenses that led to the impeachment articles against Nixon. But it’s also clear that today’s politics are very different. Most crucial, the Republicans control both houses of Congress (in 1974, the Democrats enjoyed overwhelming majorities), so whether Trump will actually be impeached, much less convicted, is another matter.

The preface to all three articles of impeachment against Nixon is worth a careful read:

In the conduct of the office of President of the United States, Richard M. Nixon, [has been] in violation of his constitutional oath faithfully to execute the office of the President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed.

In the conduct of the office of President of the United States, Richard M. Nixon, [has been] in violation of his constitutional oath faithfully to execute the office of the President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed.

These are the fundamental reasons—the violations of his oath and his constitutional duties—for impeaching a president.

Article I (which was approved by all 21 of the committee’s Democrats and six of its 17 Republicans) stated that Nixon had “prevented, obstructed, and impeded the administration of justice,” mainly in the course of allowing and covering up the Watergate break-in. Among the nine specific counts, in summary, were these:

1.    Making false statements to investigators;
2.    Withholding evidence and information from investigators;
3.    Approving or condoning false testimony by his aides;
4.    Interfering with investigations by the FBI, Department of Justice, special prosecutor, and congressional committees;
5.    Approving or condoning “the surreptitious payment of substantial sums of money for the purposes of obtaining the silence” of witnesses or potential witnesses;
6.    Attempting to abuse the CIA;
7.    Giving aides material from the Justice Department to help them evade criminal charges;
8.    Making “false or misleading statements for the purpose of deceiving the people of the United States” into believing that a full investigation of the Watergate scandal had been completed and that none of his aides or campaign staff had engaged in any misconduct; and
9.    Leading defendants to believe that they would receive favorable treatment in exchange for silence or misleading testimony.

Several of these counts could apply to Trump’s activities. For example, it is significant that Trump’s lawyers are urging him not to testify before special prosecutor Robert Mueller precisely to avoid a charge similar to Count 1 of the obstruction-of-justice article against Nixon. (Rudy Giuliani calls this the “perjury trap.”)

If Michael Cohen’s recent confession under oath is found to be true, Trump may also have violated Nixon’s Count 3, in the sense that, by criticizing Cohen for pleading guilty and implicating his complicity, Trump in effect admitted that he’d been condoning Cohen’s previous lies.

Trump’s firing of three Justice Department officials for their roles in the Russia probe (FBI Director James Comey, Acting Attorney General Sally Yates, U.S. Attorney Preet Bharara) and his pressuring of at least five more (Mueller, Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, FBI Director Christopher Wray, and Deputy FBI Director Andrew McCabe) would certainly make him guilty of Count 4.

The payoff of porn star Stormy Daniels and at least one other woman, to keep them silent about his affairs with them, shortly before the 2016 election, meets the standard of Count 5.

Count 8 may be the most remarkable charge: “[D]eceiving the people of the United States” into believing that none of his aides had engaged in misconduct. Trump has repeatedly engaged in that category of obstruction.

Trump’s messages to his former national security adviser, Michael Flynn, (“Stay strong”) and former campaign manager Paul Manafort (praising him for having “refused to break,” under prosecutors’ pressure) may have led them to believe they’d be pardoned, and would thus put Trump in the glare of Count 9.

Article II of the impeachment resolution (approved by all 21 Democrats and seven of 17 Republicans) charged Nixon with five counts of abusing his powers and violating the constitutional rights of citizens:

1.    Trying to punish critics by subjecting them to IRS audits;
2.    Directing FBI and Secret Service agents to conduct electronic surveillance of citizens for reasons unrelated to national security;
3.    Establishing a secret investigative unit within the White House (“the Plumbers”), in part with campaign funds, to commit illegal acts (including the Watergate break-in and the burglary of Pentagon Papers leaker Daniel Ellsberg’s psychiatrist’s office);
4.    Condoning, or failing to act, when he knew that aides had tried to thwart or impede lawful investigations; and
5.    Interfering with the FBI, the Justice Department, the special prosecutor, and the CIA, “in violation of his duty to take care that the laws be faithfully executed.”

We don’t know whether Trump has done anything to warrant charges on the first three counts. But encouraging aides to impede Mueller would come under Count 4; and his pressuring or firing of at least eight Justice Department officials resonates with Count 5.

Article III charged Nixon with contempt of Congress for failing to give the House Judiciary Committee documents that it had lawfully subpoenaed. This article passed on a straight party vote: 21-17.*

Trump has also committed obstructions and abuses that go beyond Nixon’s catalog of high crimes and misdemeanors. His acceptance of foreign funds, as owner of Trump Organization hotels, is seen by many legal scholars and state attorneys general as a violation of Article IX of the Constitution (the Emoluments Clause). His disclosure of highly classified information to Russian officials inside the Oval Office is a clear abuse of power. His many statements demeaning federal judges and specific members of the armed forces could be said to contravene his duties as the government’s chief executive and the military’s commander in chief.

Does all this mean that Trump may face impeachment? If the Democrats regain control of the House in this year’s midterm elections, he might. But the congressional ouster of a president requires not only a majority of the House to vote for impeachment but also two-thirds of the Senate to vote for conviction.

Back in 1974, the Democrats outnumbered Republicans in the House, 235–182—way more than the majority needed to impeach Nixon. Democrats held 57 Senate seats and could almost certainly have rallied the necessary 10 Republicans for a two-thirds vote on conviction.
Two leading GOP senators, Barry Goldwater and minority leader Hugh Scott, were among those who urged Nixon to resign; several others were on record as holding the same view.

Even if the Democrats regained control of the Senate in this year’s midterms, they would hold only a slight majority. Short of an almost unimaginably stunning revelation or an equally dramatic shift in Republican senators’ slavish loyalty to Trump, it is unlikely that they would vote to convict him. And, given Trump’s stubborn character, it is also hard to imagine that he would leave the White House voluntarily—though, then again, who knows what crazy twists and turns might happen tomorrow.

One more thing worth noting: In 1974, the House Judiciary Committee issued a motion to impeach Nixon for abusing his power by secretly bombing Cambodia. That motion was voted down, 12–26. So there’s a lesson for politicians: Not even a partisan Congress is likely to impeach a president for conducting an illegal war, not even—as was the case in Cambodia—if that war hurls the bombed nation into chaos, bringing to power some of history’s most demented monsters, the Khmer Rouge, who proceed to murder 2 million of their own citizens.

Challenges of presidential power, even back then, in more rebellious times on Capitol Hill, had their limits.

*Correction, Aug. 23: In the original version of this column, the description of Article III was omitted.