The Nixon Impeachment Proceedings
SECTION 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
For the first time in more than a hundred years,883 Congress moved to impeach the President of the United States, a move forestalled only by the resignation of President Nixon on August 9, 1974.884 Three articles of impeachment were approved by the House Judiciary Committee, charging obstruction of the investigation of the “Watergate” burglary inquiry, misuse of law enforcement and intelligence agencies for political purposes, and refusal to comply with the Judiciary Committee’s subpoenas.885 Following President Nixon’s resignation, the House adopted a resolution to “accept” the House Judiciary Committee’s report recommending impeachment,886 but there was no vote adopting the articles and thereby impeaching the former President, and consequently there was no Senate trial.
In the course of the proceedings, there was strenuous argument about the nature of an impeachable offense, whether only criminally-indictable actions qualify for that status or whether the definition is broader.887 The three articles approved by the Judiciary Committee were all premised on abuse of power, although the first article, involving obstruction of justice, also involved a criminal violation.888 A second issue arose that apparently had not been considered before: whether persons subject to impeachment could be indicted and tried prior to impeachment and conviction or whether indictment could occur only after removal from office. In fact, the argument was really directed only to the status of the President, as it was argued that he embodied the Executive Branch itself, while lesser executive officials and judges were not of that calibre.889 That issue also remained unsettled, the Supreme Court declining to provide guidance in the course of deciding a case on executive privilege.890
883 The only occasion before the Johnson impeachment when impeachment of a President had come to a House vote was the House’s rejection in 1843 of an impeachment resolution against President John Tyler. The resolution, which listed nine separate counts and which was proposed by a member rather than by a committee, was defeated by vote of 127 to 84. See 3 Hinds’ Precedents Of The House Of Representatives § 2398 (1907); Cong. Globe, 27th Cong. 3d Sess. 144–46 (1843).
884 The President’s resignation did not necessarily require dismissal of the impeachment charges. Judgment upon conviction can include disqualification as well as removal. Art. I, § 3, cl. 7. Precedent from the 1876 impeachment of Secretary of War William Belknap, who had resigned prior to his impeachment by the House, suggests that impeachment can proceed even after a resignation. See 3 Hinds’ Precedents Of The House Of Representatives, § 2445 (1907). The Belknap precedent may be somewhat weakened, however, by the fact that his acquittal was based in part on the views of some Senators that impeachment should not be applied to someone no longer in office, id. at § 2467, although the Senate had earlier rejected (by majority vote of 37–29) a resolution disclaiming jurisdiction, and had adopted by vote of 35–22 a resolution affirming that result See id. at § 2007 for an extensive summary of the Senate’s consideration of the issue. See also id, § 2317 (it had been conceded during the 1797 proceedings against Senator William Blount, who had been sequestered from his seat in the Senate, that an impeached officer could not escape punishment by resignation).
885 H.R. Rep. No. 93–1305.
886 120 Cong. Rec. 29361–62 (1974).
887 Analyses of the issue from different points of view are contained in Impeachment Inquiry Staff, House Judiciary Committee, 93d Cong., Constitutional Grounds for Presidential Impeachments, (Comm. Print 1974); J. St. Clair, et al., Legal Staff of the President, Analysis of the Constitutional Standard for Presidential Impeachment (Washington: 1974); Office of Legal Counsel, Department of Justice, Legal Aspects of Impeachment: An Overview, and Appendix I (Washington: 1974). See also Raoul Berger, Impeachment: The Constitutional Problems (1973), which preceded the instant controversy; and Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional And Historical Analysis 103–06 (2d ed. 2000).
888 Indeed, the Committee voted not to recommend impeachment for alleged income tax fraud, an essentially private crime not amounting to an abuse of power.
889 The question first arose during the grand jury investigation of former Vice President Agnew, during which the United States, through the Solicitor General, argued that the Vice President and all civil officers were not immune from the judicial process and could be indicted prior to removal, but that the President for a number of constitutional and practical reasons was not subject to the ordinary criminal process. Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73–965 (D.Md., filed October 5, 1973). Courts have held that a federal judge was indictable and could be convicted prior to removal from office. United States v. Claiborne, 727 F.2d 842, 847–848 (9th Cir.), cert. denied, 469 U.S. 829 (1984); United States v. Hastings, 681 F.2d 706, 710–711 (11th Cir.), cert. denied, 459 U.S. 1203 (1983); United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied sub nom. Kerner v. United States, 417 U.S. 976 (1974).
890 The grand jury had named the President as an unindicted coconspirator in the case of United States v. Mitchell, et al., No. 74–110 (D.D.C. 1974), apparently in the belief that he was not actually indictable while in office. The Supreme Court agreed to hear the President’s claim that the grand jury acted outside its authority, but finding that resolution of the issue was unnecessary to decision of the executive privilege claim it dismissed as improvidently granted the President’s petition for certiorari. United States v. Nixon, 418 U.S. 683, 687 n.2 (1974).