[Editor’s note: Just Security is publishing a series in conversation with Sidney Blumenthal’s “An Open Memo: Comparison of Clinton Impeachment, Nixon Impeachment and Trump Pre-Impeachment.” Other authors in the series include John Dean, Ryan Goodman, Hon. Elizabeth Holtzman, Kevin Kruse and Julian Zelizer (co-authored), and Walter Pincus.]
Sidney Blumenthal’s opinion piece in Just Security has rightly provoked a lively conversation about the impeachability of President Donald Trump. More importantly, it solves the political conundrum at the center of the debate about how to balance the potential political impact of impeachment on the 2020 election with the moral and constitutional obligations of Congress to hold this president accountable in the face of the corruption and wrongdoing reported in the Mueller Report and the nightly news.
As one of the Assistant Watergate Special Prosecutors, I have first-hand knowledge of the evidence that proved President Richard Nixon’s guilt of obstruction of justice as set forth in articles of impeachment. I helped draft the Road Map that the House Judiciary Committee used to build its impeachment case against Nixon. I also closely observed my mentor at the Department of Justice, Chuck Ruff, who served as White House Counsel during the Clinton impeachment. Now, as an MSNBC Legal Analyst, I have had a front row seat to the mounting case against President Trump. For these reasons, I want to share my thinking and conclusions on this critical topic.
In my opinion, Blumenthal’s piece changes the balance to favor Congress acting now. His data decimate the major impediment to holding Trump accountable – the fear that this president would be strengthened by a House vote for impeachment with no conviction by the Senate. Contrary to popular belief, Blumenthal lays out a clear case that President Clinton did not benefit from impeachment and that comparisons to Clinton are highly misplaced. Clinton was at 66% approval before and after impeachment. Impeachment neither improved nor diminished his standing. He was popular before impeachment and just as popular afterward, whereas Trump’s approval ratings are at a stunningly low 39 percent and dropping. Indeed, Trump has never achieved even a 50% approval. This means that fears of holding Trump accountable via an impeachment inquiry are unfounded, leaving just the question of whether the evidence supports proceeding. The answer to that is a resounding, almost deafening, yes.
What’s more, Blumenthal’s analysis shows the greater relevance of Nixon’s impeachment to the case against Trump. Elizabeth Holtzman, who as a freshman representative from New York served on the House Judiciary Committee during Nixon’s impeachment, added in her comments on Blumenthal’s piece, that not only is Nixon’s impeachment relevant to the House’s actions against Trump, but that Nixon’s impeachment was a political bonanza for Democrats in the subsequent midterms. They gained seats, in part because of the way Republicans mishandled a clear case of impeachable offenses.
I agree with Blumenthal and Holtzman that the more analogous case against Trump is Nixon’s impeachment, not Clinton’s. That is true because of the similarity and seriousness of the underlying wrongdoing and the acts of obstruction of justice in Watergate and Trumpgate versus the sexual misconduct and perjury charges that Clinton faced. Unlike Clinton, Nixon faced – as Trump does now – grave charges of abuse of power, ignoring Congressional subpoenas, obstruction of justice by misuse of government agencies, firing federal investigators, hush money payments, dangling pardons, perjury and subornation of perjury, witness tampering, and stonewalling Congress. As in the case of Nixon, Trump aides (plus Russians in the case of Trump) were indicted and convicted or pleaded guilty. No Clinton aides were ever indicted. It was not organized crime.
In fact, the case for impeachment of Trump is stronger because he has engaged in a broader stonewalling than Nixon ever did. Not only has he obstructed the investigations by Mueller, rejected the findings of all our national intelligence agencies while accepting the denials of President Putin, and suppressed the full Mueller Report and its underlying evidence from the public and Congress (despite Congress’ clear right to such material), he has gone even further with a long list of obstructive, immoral and illegal acts: barring Don McGahn, the former White House counsel, and other witnesses from testifying before Congress regarding the Russia investigation; barring testimony by DHS employees to prevent oversight of his immigration policies, which include putting children in cages; prohibiting witnesses to testify about the security clearance process called into question by his overruling the judgment of career employees who saw national security dangers in granting some clearances; withholding his tax returns despite a law that mandates they be produced; suing to prevent disclosure of his legitimately subpoenaed financial records; and much more. This systematic contempt of Congress combined with the well-established election interference of the Russians and Trump’s failure to take action to prevent its recurrence – or even to acknowledge it happened – is a deadly combination that threatens the role of the first branch of government as a foundational part of our democracy.
Like the evidence I saw against Nixon, the evidence already public against Trump unquestionably supports action against him. I and more than 900 other former federal prosecutors signed a letter that states flatly if the Department of Justice’s Office of Legal Counsel Opinion didn’t prohibit indictment of a sitting president, Trump would and should be indicted for obstruction of justice.
All that said, although Nixon’s impeachment is directly relevant, even it cannot be used to predict the reaction to or outcome of any proceeding against Trump. Almost everything about Trump is sui generis and unprecedented so that forecasting anything significant about him based on historic data is hazardous.
This is why I strongly believe the Democrats should work to forge a bipartisan coalition to hold Trump accountable, and that, if this proves impossible, they must act alone. The Republicans have joined with Trump to prevent any serious oversight investigation of him, but the facts laid out in the Mueller Report make clear that Trump has engaged in obstruction on a scale that cannot be ignored without peril to our democracy. Trump’s conduct demands that he be held accountable. It is Congress’ constitutional responsibility and a moral imperative to do so.
Regardless of the final outcome – whether or not the Republican-controlled Senate would ever vote to convict the president – Congressional Democrats must fully engage the process of public education that is a necessary prerequisite for action — either impeachment or removal by the voters in 2020. Public hearings would allow the public and the Senate to fairly judge the culpability of the incumbent. In the case of Clinton, as his 66 % post-impeachment approval ratings showed, the public didn’t believe the evidence presented to the Senate was sufficiently reliable or worthy of the price of removal from office. Nixon’s approval ratings, though, sank to 24 % as the articles of impeachment against him were voted, and he was forced from office in disgrace in lieu of assured conviction by the Senate.
Facts and evidence matter. President Nixon won a landslide victory and an overwhelming popular vote in 1972, but as soon as the facts of his criminality surfaced, his support plummeted, even among his staunchest supporters. The Paul Manafort trial also shows the importance of facts. In that trial, juror Paula Duncan, a loyal Trump supporter who thought the Mueller investigation was a hoax and a witch hunt, nonetheless voted to convict Manafort on all 18 counts. Despite her bias, Duncan found the evidence overwhelmingly compelling.
The media landscape today deprives us of an agreed set of facts. Viewers of MSNBC see different facts than those who watch Fox. Without a common base for discussion, we can never reach consensus, but a public hearing could change that by letting the American people observe witnesses’ words and demeanors for themselves. The bubbles we all live in can be penetrated by such evidence, just as it was in the Manafort trial and the Watergate Senate and impeachment hearings.
This is why we must have public hearings. With the testimony of witnesses who can be evaluated by all Americans, I fully anticipate Trump’s support will further erode. Public hearings made a difference in the case of Nixon. As Blumenthal says, “the more the public knew of Nixon’s crimes through public televised hearings, the more rapidly Nixon’s poll numbers crumbled.” And, I’d add, the more bipartisan support for impeachment grew.
Not only will impeachment of Trump not hurt Democrats in 2020, it is essential to preserving Congress as a co-equal branch of government as our Founders intended and is essential to Congress fulfilling its constitutional and moral obligations.