Watergate, the courts, and impeachment (1974) | ARCHIVES

Watergate, the courts, and impeachment (1974) | ARCHIVES

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Announcer: From the nation’s capital, “Washington
Debates for the ’70s,” a series of programs designed to bring together for an open exchange
of views and opinions, outstanding authorities on vital issues facing the world of the ’70s. The topic, Watergate, the courts and impeachment. What is an impeachable offense? What is the reach of the House of Representatives
impeachment power? Are there limits to the house investigative
power in an impeachment process? Now, here is Peter Hackes. Peter: For many Americans, the Watergate revelations,
charges and investigations awakened an interest in a closer study of our government and how
it functions. People who for all of their lives had taken
the American system for granted suddenly became vitally involved in the challenges of Watergate. They became concerned with a question of how
the executive branch of government investigates itself. Should there be a permanent special prosecutor? Should the justice department they made a
separate, independent government agency? There have been questions, too, about impeachment. What, for example, is an impeachable offense? How far can the House of Representatives go
in demanding certain evidence? And at what point can the presidency claim
executive privilege to deny access? Anticipating these and other questions, the
two senior members of the Senate Select Watergate Investigation Committee, senators Sam Ervin
and Howard Baker, asked the American Enterprise Institute to help identify the legislative
implications of the committee’s hearings. Specifically, the Watergate committee requested
a report on what the committee calls the options or alternatives which might feasibly be considered
by the committee, plus the advantages and the disadvantages of each option. AEI commissioned a study for this purpose,
and named a panel of distinguished scholars to serve as consultants. The results of their study include a report
by the project director, which has been published by AEI. The project director is Professor Ralph K.
Winter, Jr., of the Yale University Law School. Now we come to the second phase of this Watergate
study project, a round table discussion of the issues by members of the panel who served
consultants for the project. Taking part in this roundtable discussion
of Watergate, the courts, and impeachment are Professor Harry H. Wellington, of the
Yale University Law School. Professor Wellington once served as a law
clerk to the late Supreme Court Justice, Felix Frankfurter, and as a senior fellow at the
Brookings Institution in Washington. Ralph K. Winter, Jr. is also a professor of
law at Yale, and is an adjunct scholar at the American Enterprise Institute. Professor Winter has also served as a senior
fellow at the Brookings Institution. He is a consultant to the Senate Judiciary
Subcommittee on Separation of Powers. James Q. Wilson is chairman of the Department
of Government, and a professor at Harvard University. He’s the author of many works, mostly dealing
with politics. Richard M. Scammon is Director of the Elections
Research Center of the Government Affairs Institute. Mister Scammon served as Director of the U.S.
Bureau of the Census under Presidents Kennedy and Johnson. Moderator of our discussion is Professor Alexander
Bickel of Yale University Law School. Professor Bickel, who preceded Professor Wellington
as law clerk for the late Supreme Court Justice Frankfurter, is Chancellor Kent Professor
of Law at Yale. He serves also as a consultant to the Senate
Judiciary Subcommittee on Separation of Powers. We begin this roundtable with portions of
another Watergate discussion based on the AEI Watergate report. Now, to moderate our discussion, Yale University
Professor Bickel. Professor Bickel: Obviously questions are
raised. At the very least, misgivings are legitimately
entertained about the administration in effect prosecuting itself. And so the questions arise, should we take
the Department of Justice, perhaps, out of the executive department, make it independent,
in some fashion, not subject to control by the President? Or should we perhaps provide ways for appointing
special prosecutors, institutionalizing in some fashion, they also being entirely free
and independent of presidential control. Ways of doing that might include setting up
an independent prosecutor like that permanently, as a permanent office, or providing standby
authority for doing it. Well, these are the issues that we now address
ourselves do. And again, I’ll start with Ralph who has something
to say about it in the report. Professor Winter: Well, it’s always tempting,
in the wake of an event like Watergate, to contemplate separating the Justice Department
from from the political branches, for saying that the administration of justice cannot
be affected by partisan considerations. And I don’t mean to say that’s not attractive
by saying it is attractive. The problem is, of course, that the Justice
Department also has very, very important policy decisions to be made. It has the allocation of resources decisions
to be made, should there be more money in LEAA, should there be more money to prosecute
civil rights cases, or organized crime, or should the money go into some other kind of
litigation? What cases should be taken to the Supreme
Court? What the position of the government ought
to be, and various constitutional questions. A whole range of questions, which I think
one would normally want to be resolved by officials who are accountable to the people
through the president, one of the things president ought to run on. As we get down to individual pieces of litigation,
I would suppose the danger of partisan control is greater, and perhaps the need for electoral
control is slightly less. I don’t mean to say it’s not there, but I
think the need for having someone who is a presidential appointee in every case before
the Justice Department is somewhat less. Although I strongly feel that as far as settlements
and consent [inaudible 00:06:46] and the like are concerned, the basic policies decided
upon by the political officers have to be enforced. It does seem to me, though, there are a few
areas, a few kinds of cases that come up in which special prosecutors, or what I call
special counsel to grand juries would be useful. I don’t think the case for a permanent special
prosecutor has been made. I think there is a case for provision for
district judges to appoint special prosecutors to aid in various investigations. I think where there is a conflict of interest,
where high officials of the government are under investigation, or where the opponents
of these high officials of governments in previous elections are under investigation,
then a special counsel to the grand jury would be very useful. This seems particularly the case as Congress
seems in a mood to pass laws regulating elections, to pass laws which greatly increase the chance
of a whole range of political trials taking place in the United States in the future. I do not think the special counsel ought to
have the power to prosecute. I think that the decision to prosecute should
remain in the Department of Justice, that the indictment must be signed, should be signed
by the U.S. Attorney, and if the U.S. Attorney declines to sign it, that the judge can make
the presentment public to the people. Again, the ultimate decision would be political,
subject to political sanctions if the Justice Department decided not to go ahead with a
strong case. But there. are cases in our recent history, indeed, in
which district judges have tried to get the local US. Attorneys to prosecute civil rights demonstrators
and the like, cases in which the Justice Department was clearly right in declining to prosecute. So I think there is a case for a reform here,
although I feel the tremor of dissent to my right, on the special prosecutor issue, at
least. Professor Bickel: Well, to say that this is
an overreaction to Watergate is to put it mildly. And to say that it’s probably unconstitutional
is to just add icing to the cake. But I don’t want to take up the whole time. I am opposed to the idea. I don’t know what our political scientist
friends think about it, I’ll just suggest to them, because I think this ought to hit
a nerve, that at the very least this establishes, would establish, whether it’s a permanent
independent special prosecutor or some maybe 500 district judges all over the country granted
the power to appoint them at will, it establishes serious power, major power, no joke, in irresponsible
hands, hands that are accountable to no one. And I should think if there’s any single thing
about the genius of our government, and the fundamental meaning of separation of powers,
really, is that there is no such thing. There is no power anywhere in government,
which is unaccountable to anybody. Judiciary, lifetime tenure, okay, there they
are. But otherwise, power is either legislative
or executive, and that’s not because it’s elegant to divide them that way, but because
those are two categories of accountability, of power running from whoever exercises it
ultimately to democratic responsibility. Man: Except in the case of the courts. Professor Bickel: Well, yeah. Man: If you eliminate the judicial as a lawmaker,
and I would think, Alex, one would have to recognize, particularly in the last decade
of actions, that courts quite frequently and willy nilly placed in the role of making law. And at the federal level, at least, no one
has seriously proposed that federal judges be elected for limited term and then be subject
to election. Professor Bickel: But the critique of judicial
activism always is bottomed in the end fundamentally on this proposition. The trouble with judges making law rather
than deciding cases and making whatever law they make only interstitially for the purposes
of disposing of that case, the critique of it is that it’s irresponsible power. Man: Let me make the case more strongly. If you look at the behavior of many federal
district court judges, you can only conclude that a significant fraction of them have decided
to appoint themselves school superintendent, zoning commissioner, health commissioner,
advocate consumer representative, and ecological czar. Now, the suggestion is that they, in addition,
appoint themselves district attorney and chief of police. I think that the line could have been drawn
back a ways, this is probably a good place as any to dig in your heels. But this does not mean I’m opposed to the
idea of a special prosecutor. I think for all the reasons that Ralph Winters
indicated there are circumstances where we have to have a genuinely independent prosecutor. But though I have no particular proposal to
make, I’d like to ask Ralph why he did not propose, instead of district judges selecting
the prosecutor, some congressional procedure whereby given the consent of both houses,
perhaps outside the normal committee structure, since we do not want the committees to become
not only investigative bodies, but also prosecutive bodies, that the Congress could not, under
certain circumstances, as a regular matter select special prosecutors. Or is that already so well recognized that
no special provision is necessary? Professor Winter: I think that they can call
for the appointment of a special prosector, they can pass legislation. I think that becomes too unwieldy, it involves
too much political controversy and the like surrounding the investigation. I just prefer a system in which district judges
have the power to appoint the special counsel. I would permit the Justice Department to appeal,
if you want more control over the district judges, and they don’t have the power to prosecute. They can run an investigation, and the political
sanction will come into play when the presentment is made. Professor Bickel: Do you know what enormous
power you lodge in them? The power of sitting there with a grand jury…which
of course the prosecutor directs, the grand jury doesn’t exist, really, aside from the
prosecutor. He’s got the power to subpoena anybody he
wants to, investigate anything he wants, harass, pull people in, and then issue a presentment
and accuse people in public without the possibility of their defending themself. It’s just an enormous power. People have been hollering and crying about
the abuses of grand juries, and about the great irresponsible power that they hold for
years now. And that was when the grand jury was, after
all, a tool of a district attorney or U.S. attorney who was politically responsible to
someone. Now, you would cut that loose and let any
district judge anywhere in the country appoint himself a fellow to wield that power. That seems to be an absolute enormity. Man: Well, I honestly don’t think grand juries
have too much power, that we ought to be talking about reforming grand juries. I’m talking about… Professor Bickel: You’re talking about giving
them more power. Professor Winter: No, I’m not. I’m talking about giving some device to help
them operate more effectively. What I am afraid of, in the other areas we’ve
talked about, we have tried to get some kind of institutional arrangement that would impose
a heavy political sanction for those who engage in various abuses. I don’t think that sanction is very strong
when you are in the pre-investigation stage. I think the possibility of abuse is much greater
in the pre-investigation stage than it is as you get further in developing evidence. You know, the whole way the Watergate situation
broke does tend to indicate that, you know, the investigations can be carried on, and
it’s very hard to carry on an effective investigation of high officials in the government. It’s hard for everybody in justice, it’s hard
for the prosecutors, it’s hard for the witnesses. It’s hard for everybody. Professor Wellington: But I’m not at all sure
that the lesson of Watergate, as it will turn out, is that the ad hoc appointment of a special
prosecutor by the attorney general is not a successful device in extraordinary cases. One of my difficulties with the proposal is
that I think it works at cross purposes with what I think is an essential reform, and that
is the real strengthening of the Justice Department, in terms of having, as the attorney general
and as the appointed assistant attorney general and solicitor general, men of very high quality,
of having career members of the Justice Department, lawyers in the Justice Department, of very
high status in the legal profession. What is it in the experience of Watergate,
corruption scandals in the Harry Truman administration, some scandals in the Eisenhower administration,
then back to Teapot Dome, what is it that persuades you that political pressures don’t
work perfectly well to solve the problem of the Justice Department sort of prosecuting
itself? Under Harry Truman there was an episode with
a special prosecutor. He went out, but prosecutions went on very
nicely. [inaudible 00:16:43] served his term in jail
etc, etc. Teapot Dome, a method for appointing a special
prosecutor, two special prosecutors, subject to senate confirmation was worked out, and
they prosecuted all you want. In this instance, with all the pressures of
Watergate, that’s the one difficulty that we’ve met, the special prosecutor’s office
has worked. Man: But it also seems to me, Alex, you’re
adding another point here, which again, if I may speak for you… What it seems to me you’re saying is that
the further the actions of government are removed from the electoral control of the
people, the more likely they are to ride roughshod over the rights of the people. And the courts at the federal level, not at
the state and local level where you do have, in many cases, elective judges…which is
not necessarily a good way to do it, but at least it’s different. At the federal level, the life term conferred
upon the judge, with removal only under the most heinous of circumstances, does inevitably
lead to a certain distance from the people. Now, perhaps in the administration of justice
this is wise, but I can see your point entirely that sort of equipping each judge with an
extradutive mace, which is what you seem to be, regarding the special prosecutor, has,
would have consequences that Ralph wouldn’t agree with, but seem to be… Professor Winters: Well now, wait a second… Man: Political control, is supposed to [crosstalk
00:18:08] whatever. Suppose a special prosecutor had been appointed,
as he undoubtedly would have been if this were on the books, during the McCarthy era
when Joe McCarthy was saying the Truman administration’s full of spies the president isn’t prosecuting,
they’re his own people, Alger Hiss tDean Acheson’s friend, this is all one circle there and he’s
not cleaning them up. So we need a special prosecutor to get in
there, and so Otto Otepka, or somebody, gets appointed special prosecutor until he finishes
the case. He’d be there prosecuting red spies today. Professor Bickel: If it were true that investigation
and prosecution is a judicial function, then I agree, the Constitution does say Congress
may empower them, of course, to make appointments. I would read that as limited by judicial or
near judicial functions, although some cases have mistakenly gone farther, and that would
be fine. But the gut issue is whether prosecution and
investigations is a judicial function. You argue beautifully in arguing against an
independent department of justice, that investigation and prosecution are executive functions. I think that’s true, and I think that’s constitutionally
true, and I think, therefore, that would be the most serious constitutional problem… Professor Winter: Where does the SEC and the
LEAA get its power to investigate? They’re independent, they’re not controlled
by the executive branch. Your argument is against all the administrative
agencies, wipe them out. Professor Bickel: No… Professor Winter: Not that that’s such a bad
argument. Professor Bickel: Well, that’s the scenic
route of last night. The place of the administrative agency in
the constitutional scheme, while somewhat dubious to begin with, is not what you would
propose for these special prosecutors. These are fellows appointed by the President,
they’re confirmed by the Senate, they exercise quayside judicial functions in one part of
them, which makes them judges. And you can appoint judges and call them SEC
commissioners, or you can appoint judges and call them judges. Professor Winter: The SEC has to do about
prosecuting people. Professor Bickel: They exercise, on the other
hand, some prosecutorial functions. In some administrative agencies, that’s separated
out, and strong arguments have been made that it ought to be separated out in all of them
and that it’s a mistake to meld them. And they exercise in other portions what are
viewed as legislative functions, as filling in details by delegation from Congress of
legislation, and administering the legislation. Now, people had a lot of trouble with that
when it was first set up 100 years ago, and one might want to rethink that. It’s too late to rethink that, but it’s certainly
no argument, no handle for you to leap from the SEC to the different and aggravated constitutional
monstrosity of the prosecutors appointed by Judge Harold Cox and Gerhard Gesell. Professor Winter: It seems to me that the
SEC, having the power as you describe it, to act as a judge, to act as a prosecutor,
to act as a legislator, that that power is of far greater offense against your view of
the Constitution than the kind of very limited proposal I’ve made. Maybe they don’t even have the power to prosecute,
the special counsel I’m talking about. And I ought to say, Alex, that as you well
know, and have not revealed to the audience, thereby violating the Security and Exchange
Act of 1935, the state practice, there’s a long, historical background of special counsel,
grand juries… Professor Bickel: Well, the states do all
kinds of things. States do all kinds of things, they mix all
kinds of powers. I don’t think the law of Connecticut binds
the U.S. Constitution. But at the very least, there’s a serious constitutional
problem. It ought to give Congress pause, and it ought
to at least to give them sufficient pause to consider the equally serious policy and
prudential questions that have been raised by everybody else, I guess, against your isolated
position. Professor Winter: That merely shows who is
the true reformer on the [inaudible 00:22:05] Peter: As with so many other Watergate related
topics, the question how can the executive branch of government investigate itself fairly
does not yield us simple answers. Next, our panel turns to another knotty problem
which has grown out of the Watergate investigation, impeachment. What are the standards by which an American
Congress goes about acting against the chief executive. Here again, Professor Bickel. Professor Bickel: What is an impeachable offense? And do we need a comprehensive theoretical
definition of it? What is the reach of the House impeachment
power, so far as obtaining evidence is concerned? And how does that impeachment power, exercised
perhaps by subpoena, exert itself against a claim of executive privilege? Does it override it? Are there any limits to the House investigative
power in an impeachment proceeding? And who decides this issue? The House for itself? Do the courts have any role? Is it an impeachable offense in itself to
withhold information that the House demands in an impeachment proceeding? What about the House making public, in the
course of impeachment proceedings, evidence that might or is claimed to prejudice defendants
in a criminal trial? Again, may a court control that? May it, in some fashion, try to prevent the
House from engaging in proceedings that are thought to prejudice the rights of defendants? This is sort of the bag of problems that are
now confronting the House, the White House, and in some measure courts. And at least so far as the confrontation between
the impeachment power and executive privilege is concerned, Ralph Winters’ report has a
discussion of executive privilege, and so perhaps we might start out with him on this
issue as well. Professor Winters: Well, I think the impeachment
question does call upon us to make a distinction between the notion of what is an impeachable
offense justifying removal, and what is an impeachable offense justifying enforcement
of a subpoena by a court. I would hate to see the courts get involved
in the first question. I would hate to see the courts being called
upon to define what it is, what kind of acts justify the Congress in impeaching and moving
the President, and then, I suppose, in reviewing the evidence. I also think that there really are no standards
for impeachment. We’re in the midst of a debate as to whether
abuse of power, a gross abuse of power, indictable offenses are the standard. It seems to me that in terms of raw power,
the Congress has the power to impeach, to remove for more or less whatever it wants
to. They shouldn’t do that. It should impeach only for gross abuses, it
seems to me. And it also seems to me you can’t limit it
to indictable offenses. If, as someone has said, we elect a president
who one day wakes up and says, “Gosh, I got a nice place out in the islands, I’ll see
you guys around,” and just walks out, that does seem to me that that our Constitution
does provide a means of handling that situation. A more difficult problem comes, I think, when
the House votes and seeks to enforce subpoenas in a court, because courts are bound by a
standard of legal relevancy. I myself think that most congressional demands
for information, most congressional subpoenas, are not enforceable, and they’re not, as lawyers
would say, justiciable. That is to say the court doesn’t recognize
the plan of executive privilege so much as it declines to adjudicate the issue. And I think the reason for this is the congressional
demands for information, congressional subpoenas, are based quite as much on political considerations
as they are on a need for data on which to pass legislation. Just as the President’s refusal to grant the
information is a mix of political considerations and some kind of desire to maintain the privacy
of presidential discussions. I don’t know how a court can weigh these political
considerations. I think these political considerations ought
to be determined by politics. Congress ought to mobilize public opinion,
the President ought to mobilize public opinion, and wherever the political sanctions fall,
that’s how it turns out. If the public really wants all the information
the executive branch has to offer, they can elect a president that’ll do that. I distinguish this from a grand jury subpoena. The grand jury subpoena, it seems to me, is
based, usually, I mean where it’s a proper subpoena, a judge can make a decision as to
relevancy to a particular crime, as to the need for the information, the available alternative
sources and a lot of other things that they can’t do where congressional subpoenas are
concerned. And I find myself far more favorable to the
enforcement of grand jury subpoenas where there are proper safeguards, sworn testimony
that the particular, that specified evidence contains relevant information, and the like. Impeachment, it seems to me, falls between
these. And in thinking about it, and I’d like to
hear…I think I’d like to hear, I’m more doubtful after the last discussion…what
my colleagues here think about this. But I think I come down as follows. Whereas the the claimed impeachable offense
is of a non-criminal nature, that subpoenas are non-justiciable. Where the subpoena charges an offense that
is an indictable offense, a court might well say this is like a grand jury subpoena, indictment
of a president is, after all, a substitute… I’m sorry, impeachment of a president is a
substitute for indictment of a president, and I think the case for enforcement is much
greater there. But again, it has to be specified evidence,
sworn testimony that the evidence contains matters relevant to the offense, and it ought
not to be some kind of general claim of power to all of the indexes of all presidential
papers and all presidential assistance papers, and then the right to go through those files
without restriction. That, it seems to me, is impermissible. I think if we had a rule like that, we would
set ourselves up, if I may borrow a tactic of my colleagues in discovering that my proposal
for special counsel would lead to over 500 special counsel, but it might lead to repeated
impeachment inquiries. So-called impeachment inquiries with a subpoena
demanding access to files. I think we might seriously and permanently
damage the presidency if we don’t restrict in some way, if we don’t build safeguards
around congressional subpoenas, even where there are impeachment proceedings underway. Man: Well, I think, though obviously wounded
by the reception of his last set of proposals, Ralph has risen and has rescued his good common
sense, and returned to its paths. I generally agree. I’m not sure I draw the line at offenses that
are criminal, indictable offenses. I certainly agree it seems to be the text
of the Constitution is plain on it, that there can’t be judicial review of the impeachment
process, that judges cannot sit…although there is opinion that they should. Raoul Berger, I think, believes that, that
you can’t have an impeachment and then an appeal from the impeachment judgment in the
Senate to the Supreme Court, in effect, for the court to pass on the validity of the impeachment. I think the Constitution just simply says
the contrary. That, on the other hand, doesn’t mean, as
Ralph says, that when it comes to a subpoena the judges are equally excluded. It doesn’t mean that, for one thing, because
the alternative to involving the judicial process in some measure is to force Congress
to drop the atom bomb, is to force Congress to say any denial, any refusal to accede to
a request for information is itself an impeachable offense. And that seems to me the resolution of a problem
of a magnitude, and of a violence, if you will, which is undesirable. So I think, although the inclination seems
to be to the contrary in the House now, that the House ought to go to a judge with its
subpoenas. Now, what is the judge to do, short if the
case is easiest, if the information is relevant to an indictable offense? If it’s not, it seems to me the judge cannot
avoid asking himself the question is it relevant to what would properly be an impeachable offense? And while, as a matter of raw power, the House
can impeach for anything, the fact is that it shouldn’t, and that there ought to be limits
on the impeachment power, very serious limits, otherwise, we’ll become a parliamentary system
of government. And a judge ought to ask that question. I think if it’s plain in his mind that the
information is not relevant to an impeachable offense…. For example, if the House now asks for information
on the President’s practice in impounding funds, a dubious constitutional practice perhaps,
but surely not an impeachable offense. I think a judge ought to say I will not enforce
that subpoena. If it’s a marginal matter, then perhaps he
ought to give the House the benefit of the doubt and enforce it, even though it’s not
an indictable offense. For example, the President has been found
out to pursue the practice of having assigned an FBI man to shadow every congressman and
every senator, and of having not necessarily tapped their telephones, but exercised enormous
amounts of surveillance over their activities. Not a criminal offense, I think, but it certainly
is an abuse of power that ought to be an impeachable offense. And it seems to me that a judge ought to issue
a subpoena for information relevant to that kind of a charge, as much as for information
relevant to a charge of obstruction of justice, or what have you. So I would place the judge in an arbitrating
position, so as to make it less likely that Congress will enforce its subpoenas by impeachment
itself, and so as to exercise at this preliminary stage some control over the impulse to use
the impeachment power in unbridled fashion. Which is an impulse that if we allow it to
proceed to its satisfaction would destroy the separation of powers, and make the president
simply a creature of Congress Professor Wellington: Well, I would like to
disagree, if I may. Certainly I don’t want to disagree that the
House should be very careful and circumspect in deciding what constitutes an impeachable
offense. But I am very concerned about the House going
to a court and asking to enforce a subpoena. And I’m concerned about it because of separation
of powers. I can see the merit of the argument, it has
a ring of…it’s round and sensible, and it sounds like a nice accommodation. I recognize that the notion of what is a political
question is a…the concept of a political question is being eroded, and has been. I don’t think that’s a good thing, I think
it’s a bad thing, and I think this would be a further erosion of it. I can imagine an order by a district court
judge enforcing a subpoena, I can imagine it being appealed, I can see it going to the
Supreme Court of the United States. If we ever do get to a trial, the chief justice
is going to sit in the Senate, that troubles me. I don’t know how the courts write an opinion
in these cases. What did they say about why they are or are
not issuing, enforcing a subpoena that doesn’t very seriously intrude on what I would take
the Constitution to empower the House to decide? I think it’s a very hard problem. I don’t like saying that the court shouldn’t
be involved in it. But it seems to me to be almost a paradigmatic
case of the political question. Professor Bickel: Well, what’s political? No doubt the Constitution says that the House
has the sole power of impeachment. Man: That’s right. Professor Bickel: And it says the Senate tries. It doesn’t say anything about how you get
information. Man: I understand. Professor Bickel: The real problem is that
these two things overlap, and that you can’t decide the information question without having
something to say about the nature of the impeachment power. But you only have that, you only say that
in connection with your subpoena. Whatever you say makes no inroads at all upon
the House’s ultimate power to impeach, and the Senate’s ultimate power to try. That remains non-justiciable. Professor Wellington: But doesn’t it substantially
influence what the House then will do… Man: It may. Professor Wellington: …and doesn’t the court,
don’t the courts then play a very important role in shaping what constitutes an impeachable
offense? Which seems to me to be contrary to the spirit
of the Constitution. Professor Bickel: It may, but it’s an accommodation,
I think, which is to which one is led by an absolute horror of the opposite result. Because the opposite result would be that
you can probably turn almost anything into an impeachable offense by going out there
asking for information, issuing your subpoena, the president denies it, and you’ve got an
impeachable offense. But we haven’t had much of a history. Man: None at all. Professor Bickel: Well, no, we haven’t. But…we’re starting to. Professor Wellington: Well, why should we
assume that that’s going to be the future? Man: Isn’t that kind of history more likely,
once you open up the judicial remedy? Professor Bickel: I think so. Man: No, no. Once you open up the judicial remedy, you
are issuing an invitation to Congress to get information it couldn’t otherwise get. Take a hypothetical. In the Kennedy Administration and the missile
crisis, there were allegations…if I’m recalling them incorrectly, take it as a hypothetical. There were allegations at the time that well
before President Kennedy went on television, the evidence that missiles had been introduced
into Cuba was quite strong. I think it was based not only on espionage
within Cuba, but upon the freighters that had been observed going to Cuba were of a
kind that probably could carry only missiles. It may well be an impeachable offense for
the President of the United States to delay action and take the kind of action he did
on the evening of election. I think somebody might well consider that
a gross abuse of power, according to this House staff report that I’ve read. Professor Bickel: You mean he exercised his
power as commander in chief, and is… Man: Just suppose… No, no. But suppose that… Professor Bickel: It’s like making an impeachable
offense that the Battle of the Bulge took place. Man: No, no. Suppose there is an allegation that the timing
and the content of the action that the President took…I’m not saying it happened…that the
timing and the content discovered entirely by partisan political considerations. That seems to me to fall within the definition
of impeachment that the House staff report talks about. Professor Bickel: well, it’s much too broad. Man: Well, I’m not so sure. I’m not so sure that’s true. Professor Bickel: I would assume that a subpoena
directed toward that, as I gave the example of the impoundment, I’ll give you another
example of a subpoena directed at the record of the bombing in Cambodia… Man: But why? All right, but why? Professor Bickel: I would assume that those
subpoenas a court would simply not have anything to do with, because it would say those are
outer reaches of the impeachment power, which are at the very least so dubious that we will
not lend our authority to them. Man: How do we know they’re dubious? Professor Bickel: Well, we decide they’re
dubious. Man: On what grounds? I mean, take Harry’s question. What opinion does the court right, what does
the court say…what standards does it apply in determining this? Professor Bickel: What you’re saying is that
we have no standards for defining the impeachment power. I think that’s quite wrong. I think the beginning of a definition of what
is the proper reach of the impeachment power is the separation of powers, the nature of
this government, the independence of the president, lots of history bears on this, the impossibility
of maintaining that separation and that independence of the president if political errors, all
kinds of misdeeds, dubious interpretations of the Constitution, what have you. If those are impeachable offenses, then the
president becomes responsible to Congress after the fashion of a prime minister. Man: Correct. I agree. Professor Bickel: Now, that is a theory that
is just as good…it’s a lot better than…it’s a lot better, and can lead to a lot closer
reasoning than many a theory on which courts decide cases. I think it’s non-justiciable for courts to
apply this theory once Congress has run amok and gone wrong and impeached the president,
and even convicted him. It’s not not reviewable. But on the issue of a subpoena, I don’t see
why a court can’t figure out what an impeachable offense is, on a basis of this kind of reasoning,
and say this subpoena we’ll issue, the other one we won’t, and if you want to go and run
it politically we can’t stop you, but you can’t have the aid of the judicial power in
enforcing that kind of a subpoena. The other one you can. Man: Why do we assume that the courts, whom
we previously described as 500 district court judges running around changing the zoning
laws, appointing prosecutors to investigate the NAACP, are or should be a reasonable check
on the impeachment process? We’ve only had one impeachment, and that did
not lead to a conviction. We have had no other serious efforts to impeach
the president. It seems to me the principal check on the
impeachment process is the political position of Congress vis a vis the public and the presidency,
and I think that Congress, far from having rushed headlong into premature impeachment,
has moved with, to put it mildly, majestic stateliness accompanied by a good deal of
frivolous bickering on the side. And what we really object to are some of the
more dubious, but altogether to be expected, staff reports, public speeches, gallery pleasing
declamations of those who would like to get Richard Nixon for everything from Tricia’s
wedding, to the Cambodian incursion, to ITT, to Watergate. But I see no resonance for those sentiments
in the Congress, as a whole, and I think that congressman composes of practical men and
women with substantial political experience, is aware of the enormous respect the American
people have for the office of the presidency, the enormous respect they have for established
procedures and incumbency. It has taken severe jolts to get public opinion
to even consider that we may be at as desperate a position as we are now, and there is still
no general public support for the notion of impeachment. There is a support, perhaps, for change of
some sort, if it could be arrived at by a process to which the word impeachment did
not apply. Now, I think that that is going to be a continuing
feature of the American political system. Because these attitudes to which Congress
is responding, and not in a nakedly self-serving way, because I think Congress shares these
attitudes, these are not attitudes of the moment. I think Dick Scammon would say that opinion
polls and surveys of popular ideology, going back as far as we have them, indicate this
enormous reservoir, almost amounting, if I may shift the metaphor to an inertial force,
that supports the institutions of government. And it is best illustrated in the field of
foreign policy. The American public never want to go to war. All opinion polls show we should stay out
of Vietnam, stay out of Israel, should stay out of Europe, should stay out of the Far
East. The same opinion polls always show that they
will support the president whatever he does, including taking us into war and any of those
places, and the support will last for a very long period of time. Not indefinitely, but for a long period of
time. That, it seems to me, is the crucial political
reality around which these constitutional issues are revolving. Man: Alex, if may add my agreement to my colleague
political scientist, both to the battery of legal talent… Man: No, I was on your side. Man: I know you were. We didn’t get [crosstalk 00:44:33] Man: We’re going to make you an honorary member
now. Man: Thank God. Man: You didn’t get two thirds because it’s
too hard to get two thirds. A joint appointment… Man: The fact is, I think this is basically
correct, that when you’re talking about impeachment, what you’re talking about is a political action
with respect to the presidency, which people view with revulsion, under normal circumstances,
anyway. It’s not easy to do. It’s been tried, and it really hasn’t passed
with very high marks. It really is the reverential awe with which
people hold the the presidency as a general institution that is your best check of all. Now, I can make no comment on the question
of whether this subpoena or that subpoena lies in a matter involving evidence or desire
for information. I just don’t know. I do think also, though, Alex, that your point
as a response to Mister Wellington, the sound one that if you do carry through a successful
impeachment, you’re never going to be a virgin again. In other words, this next impeachment is going
to be a lot easier. And it may be that you are approaching something
of a parliamentary government, though one must remember that in a parliamentary government,
the head of state also has the right to dissolve the Congress. So how many congressmen… Professor Bickel: Then we’ll be a flawed parliamentary
government. Man: How many congressmen would really want
to move into a situation which their heads would go on the block en masse once the president
decided this was a good thing to do, is the next question. Professor Bickel: But they wouldn’t. They wouldn’t. They would have all the cookies in a parliamentary
government, and none of the disadvantages, from their point of view. Man: [crosstalk 00:45:59] Well, not none of
the disadvantages. But this, I think, is a long jump from one
successful impeachment, if it were successful, to playing footsie with parliamentary systems
of government. Professor Bickel: Well, but it does say that
it is important to worry about what grounds this impeachment is placed on. And as to the point that the ultimate recourse
is to public opinion and what have you, that is, I think, undoubtedly true as to the whole
procedure. Man: And Alex, if I may interrupt, it’s far
more true with the Senate than with the House. Members of the House, you know, do have the
getaway plank. In other words, they can all say, well, we
want to have all the evidence brought out, and so in all conscience I joined with my
colleagues in voting for an indictment. That doesn’t mean I say he’s guilty… But the senator who sits there has got to
vote up or down, by a two-thirds majority, which is not easy. And I can see why, from the point of view
of the managers of the impeachment, if it were successful, the managers on the House
side also want to make as good a case as they can. They don’t want to be accused of all sorts
of high-handed practice, and all sorts of hanky panky in making up their case. They want to make as good and persuasive a
case as they can because it won’t take more than a third of the Senate to keep them from
making that case a successful one, as it kept them from making a successful case 100 years
ago against President Johnson. Professor Bickel: Well, I was going to say
I agree that the play of public opinion, and of just what the people feel, and what they’re
ready for is decisive. It’s decisive, I think, for the whole operation. I don’t think it plays the same way on a specific
request for information. On, that is to say, the procedures by which
the process goes forward or doesn’t go forward. I don’t think… Man: Oh, I think you’re right. Professor Bickel: …one way or another, public
opinion, if ready for impeachment or not ready for impeachment, is going to help you with
that. So you’ve got, when it comes to a request
for information and a subpoena, you’ve got a deadlock in the government, a deadlock which
can be broken only, and Congress might feel that it wants to break it that way because
it comes to institutional pride…you know, institutional machismo. And one can see the beginnings of that in
the House. Which can be broken only by what I consider
a rash and over-reactive kind of thing, maybe impeaching for not giving the information. It’s for that reason that I think one wants
judges in there, inserted not to make policy and run school boards, but inserted to perform
what is quite properly the judicial function. Man: Alex, though, you’re not really saying
that there’s an impasse. There is a way to meet the impasse, namely
the Congress can vote the impeachment. Professor Bickel: Well, that’s what I said. But I think that’s undesirable. Man: What you’re saying is more for a non-desirable
reason… Professor Bickel: That’s right. I don’t want… Man: But this would…again, I think this
would have to be in the minds of the majority of the moment in the Congress, the men who
are going to manage the trial of the president before the Senate, and those who seek his
conviction or removal from office. I don’t think there’s a member who’s going
to vote frivolously on this question. Professor Bickel: No, but they’re put up to
the choice of either voting an impeachment simply because of a denial of a request for
information, which I think is wrong. And they may feel hot enough about that and
be supported by the country, which is where the support is generalized, not on the issue
itself, which is bad. Or on the other hand, they may withdraw and
desist, which is also bad. It’s an impasse which I think is insoluble. And from which… Man: Sorry, it’s not insoluble. It’s insoluble with the kind of goodness you
want to solve it with. Professor Bickel: Right. Which is why one wants to insert a judge at
that [crosstalk 00:49:39] Man: But it’s characteristically the point
we [crosstalk 00:49:40] Man: No, I would agree with that. I see your point. Professor Winter: Alex, what you’re saying
is totally inconsistent with the position you were taking, I think, on special counsel
to the grand jury [crosstalk 00:49:48] Professor Bickel: It really hurts, doesn’t
it? Professor Winter: You know… Professor Bickel: It still hurts. Professor Winter: …there, we had to fear
the intervention of the 500 district judges, and the political process, and the political
pressure would be enough. And here, you know, you’re talking about impasse,
and it can’t be done, and atom bombs… Professor Bickel: Shall I explain it to you? Professor Winter: …so that the courts get
involved. Well, I think you’ve already explained it
after a good length, Alex, as much as your [crosstalk 00:50:12] Professor Bickel: …there… I know it still hurts. The wound is open. There, you were talking about empowering a
district judge irresponsible to anybody, on his own. Grab himself a prosecutor, grab himself a
grand jury, and start roaming over the countryside with full investigative powers, and then issue
a presentment, what have you, bringing power to bear on people, on individuals. Here, we’re talking about a judge sitting
in the performance of a judicial function, as a neutral agent. Not self-starting, not investigating, not
appointing anybody, but deciding what is a proper judicial, or a customary judicial question,
whether a subpoena is based on a sufficient claim of authority. Which judges, of course, do it in every contempt
of Congress case. Professor Wellington: Excuse me, but isn’t
there a difference in that the judge is not just deciding whether the subpoena is appropriate,
but he is also decided…because he can’t answer that first question until he answers
the second question. And the second question is what is an impeachable
offense? He cannot decide whether it’s appropriate
until he answers the second question. And I would like to maintain that that second
question is none of his business. Professor Bickel: But Harry, he doesn’t conclude
the second question. He doesn’t decide… Professor Wellington: But he has to question… Professor Bickel: When he decides what’s an
impeachable offense, or that something is not an impeachable offense, that is not a
decision that binds Congress so that Congress may not impeach for that offense. Professor Wellington: I understand that. Professor Bickel: It may influence them, he
doesn’t decide that. Professor Wellington: I understand. Professor: He is being asked to arbitrate
and to help Congress in an exercise of power where otherwise there’s an impasse, soluble
only in an undesirable ways. Professor Wellington: But I would prefer… Professor Bickel: He may say I agree with
Congress, this is an impeachable offense, I will help. If he says I disagree, I will not help, it’s
left back to politics. Professor Wellington: No, I don’t agree with
Congress, I agree with the committee that asked for this information, not with Congress. Now, I would prefer to leave it to Congress. And I would prefer to allow the president’s
attorney to respond to that committee and explain why they would not produce the information,
and make a persuasive case. Let the committee then reach its conclusion
about it, and put it to the House. Professor Bickel: Which does what? It either impeaches… Professor Wellington: Which then does exactly
what I would suppose a judge would do, but they are empowered to do what a judge is not
empowered to do. Professor Bickel: You’ve taken the House from
a consideration of an impeachable offense, which is obstruction of justice, and you’ve
shifted the issue to an impeachable offense, which is a failure to respond to a subpoena. And that becomes the impeachable offense,
and that’s what they impeach on. I think that’s a very undesirable result. Man: But that isn’t what happens. You’re speaking as we are confronting, the
first time in history in which a President of the United States may refuse information
to a committee of Congress. Presidents of the United States refuse information
to committees of Congress every year. That’s what executive privilege is, that’s
what the refusal to allow presidential appointees, under certain circumstances, to testify amounts
to. And in all of these cases, Congress gets very
mad, its machismo is offended, or whatever the female equivalent of machismo is for Misses
Abzug. And they get indignant, they denounce, they
read back in the records of the Federal Convention. But they don’t impeach. And why don’t they impeach? Because they say, well, look, he’s turned
us down, he’s a rascal, but it’s not an impeachable matter. Now, we’re assuming that in this case, because
they’re asking for information which is part of a potential impeachment inquiry, that in
this case and this case only, they will get their dander so up that without adequate grounds,
and in a frivolous way, make impeachment turn on the obstruction of justice. I don’t yet, I’m not yet persuaded they will
flip from their normal posture of frenzied impotence…which, and much of the frenzy
is calculated because they know they’re impotent…to one in which they will become malicious. That is, to try to impeach a president on
weak grounds rather than sound grounds, which I believe would be a disaster. If you’re going to impeach the president,
and convict him, let us not repeat the history of the Warren Commission, in which forever
after we argue about whether it was the right thing to do or not. If we’re going to do it, by God let us do
it, and on the most solid grounds possible Professor Bickel: Well, they may not turn
that way, they may turn the other way and desist. Which with their penchant for frenzied impotence
is more likely. But that’s bad, too. What I’m saying is that this issue, if allowed
to be resolved by Congress, cannot be resolved well. It will be resolved in undesirable ways. Man: That’s the nature of the system. Professor Bickel: And that that’s why… Oh, but the system also includes judges, whom
we include when it comes to a grand jury subpoena. Professor Winter: I don’t like judges. Professor Bickel: At all. Man: I like judges, and I want to say… Professor Bickel: I understand you’re not
a lawyer. My understanding is that you’re not a lawyer. Well, I take it we haven’t reached a…and
I suppose won’t reach the one remaining problem, which is currently facing Judge Sirica, namely
whether there’s any possibility of a judge calling a halt, in effect, to any part of
the impeachment proceeding because it prejudices criminal trials. I think…I hope I stated the question so
as to… Professor Winter: Produce the answer. Professor Bickel: …indicate the improbability
of a judge acting that way. And I freely predict that that’s the conclusion
we’d have probably reached, if we discussed this issue, which however, we are a out of
time… Professor Winter: We could vote on it. Professor Bickel: …time to discuss. And so I think I will close the proceedings
now, thanking the panelists and the audience. Good night. Peter: This roundtable discussion has included
the views of five knowledgeable experts who hold differing opinions on the basic causes
and the possible cures for the American political spectacular, called Watergate. It is the aim of the American Enterprise Institute
to illuminate issues of the day by presenting many such viewpoints in the hope that by so
doing, those in decision making positions will benefit from such a free exchange of
informed and enlightened opinion. This is Peter Hackes, in Washington. Announcer: Washington Debates the ’70s is
created and supplied to this station as a public service by the American Enterprise
Institute, Washington, DC.

4 thoughts on “Watergate, the courts, and impeachment (1974) | ARCHIVES

  • Harman Smith Post author

    Watch out, Americans. Donald Trump is gonna get impeached because he makes fun of journalists on twitter.

  • jbrisby Post author

    When he grew up, Ralph Wiggums changed his name to Winter.

  • Some Guy Post author

    I wasnโ€™t alive during the seventies but I can already tell their journalism was better.

  • Jeff Sartain Post author

    Nixon's lawyers were bad. They could not argue they way out of a paper bag. They lost ever argument or motion they made. Nixon was railroaded by the courts, Congress and the liberal press.

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