While there are certainly grounds for distinguishing the
conduct that led to President Nixon’s resignation in 1974 and the allegations leveled
thus far against the current president, the effort by both presidents to get
the FBI to back off ongoing criminal investigations is now inescapably similar.
Indeed, long after revelations of the actual
criminal conduct surrounding the break in at the Watergate hotel, it was the
audio tape of Nixon agreeing to seek the FBI’s disengagement that was viewed as
the “smoking gun” after which impeachment became inevitable. (It is of course true that the Democrats
controlled Congress in 1974, but it was notably the Republican minority leaders
in the House and Senate (along with Republican Senator Barry Goldwater) who
played the essential role, telling Nixon that he faced certain impeachment in
the House and conviction in the Senate, thus prompting his resignation .) As a
matter of constitutional law, does the fact that Congress was poised to impeach
one president (pre-conviction) for the conduct it now seems apparent was
engaged in by this President mean Congress must begin an impeachment
investigation here?
The short and strictly formal constitutional answer to such
a question is surely no – impeachment is in the main a political remedy, committed to the
discretion of a majority of the House and two-thirds of the members of the Senate,
none of whom is bound in any formal (or even informal stare-decisis sort of way)
by decisions past legislatures have made in past cases of impeachment. And while
a congressional failure to address the situation with a parallel degree of
seriousness would leave congressional Republicans here fairly open to charges of partisan,
political hypocrisy, that criticism is plainly different from a charge that a
failure to move against this president would be, in some sense, unconstitutional.
At the same time, it seems strange in this setting to imagine
that past impeachment practice is constitutionally irrelevant. It has been in precisely this kind of
situation – in which the courts have had little or no occasion to interpret the
import of a particular constitutional power – that the Court has relied on the
practice of the political branches to illuminate the meaning of constitutional
text. As Justice Frankfurter put it: “[I]t is an inadmissibly narrow conception
of American constitutional law to confine it to the words of the Constitution
and to disregard the gloss which life has written upon them.” Whether as evidence of the political branches’
own interpretation of the Constitution, or as an indication of a
post-ratification political settlement that has been reached, practice has (for
better or worse) often informed our understanding of constitutional meaning. If presidential practice (and congressional
acquiescence) may be treated as “as a gloss on the ‘executive Power’ vested in
the President” under section 1 of Article II, why should not congressional
practice (and presidential acquiescence) be treated as much the same kind of
gloss on the meaning of, say, “high crimes and misdemeanors” under the same
Article’s section 4?
Quibble if you like about the exactness of the analogy to
cases like Youngstown Sheet & Tube or Dames & Moore, but I would like
to think such arguments provide at least some grounds for dispensing with
arguments that what this president has done should not count as a ‘high crime
or misdemeanor,’ with or without formal conviction. Whatever the political
likelihood of Congress acting, there should be scant doubt that it has ample
constitutional grounds to proceed.