The Abuse of Power and the Constitutional Remedy
[Originally published in RS 150, December 20th, 1973]
Richard Goodwin is perhaps best known as the brash special assistant to Senator, and then President, Kennedy. He was one of JFK’s two main speechwriters and also became the President’s specialist in Latin American Affairs (even once holding a midnight-to-dawn secret meeting with Che Guevara in 1961, from which he returned with a personally imported selection of embargoed Cuban cigars, promptly shared and smoked with President Kennedy).
At 29, Goodwin was the youngest member of the White House staff. He was characterized by Arthur Schlesinger as “the archetypal New Frontiersman.” Both there and in subsequent times, with Robert Kennedy and others, Goodwin wrote many major speeches and statements of a hopeful Sixties.
Lest this background seem somewhat too staid, it should be pointed out that Dick Goodwin began his public career, after clerking for Supreme Court Justice Felix Frankfurter, with the congressional committee that broke open the TV quiz show scandals and was instrumental in the discoveries which brought that fraud to an end. That was 1959.
During the past two years, Goodwin has finished a book, “The American Condition,” an appropriately difficult major work, to be published this spring, and has distracted himself by developing a thorough expertise in high-fidelity equipment. He is also a gun freak who not only knows his way around a .44 magnum but also makes his own ammunition.
This piece is the first of a series of monthly essays and dispatches by Goodwin on politics and the conduct of organized society in America. Although perhaps the most analyzed topic of the day, impeachment was the inescapable subject of the opening essay.
—The Editor
President Nixon is a man dedicated to the pursuit of historical “firsts” — e.g., the first President to visit China, to install a bowling alley in the White House. Despite current distractions, last month he found time for another such achievement, becoming the first President to publicly announce that he was not a “crook.” In the entire history of the United States no other President — not even Abraham Lincoln — has made so forthright a declaration of his lack of criminality. As everyone in South Boston knows, when a man talks like that it’s time to lock the doors.
But even if he were a “crook,” that fact alone does not make his impeachment necessary. The country could survive a “crooked” President, it might even flourish, although it would set an unhealthy precedent to allow a known thief to remain as President. Lyndon Johnson made millions of dollars from public service, but it was the war in Vietnam and not the television station in Austin which was his great offense against America. Richard Nixon was not chosen to be king for a quadrennium or a temporary dictator, but only a President of the United States, an office whose powers are limited not only in extent but in the purposes for which they can be used. When a man is elected President he does not then become President. First he must take a public oath to observe those limits, to “protect” and “defend” — not the national territory and wealth, but the “Constitution of the United States.” That oath is his contract with the people, the conditions under which he holds office; if violated, he has no further right to the office.
We now have evidence of lawlessness and usurpation which went concealed or unchallenged for four years, until a handful of incompetent burglars confronted a righteous federal judge. When the Watergate scandal broke, the President was only weeks away from establishing complete personal control over the FBI and CIA by replacing J. Edgar Hoover and Richard Helms with the compliant L. Patrick Gray and John Schlesinger — men whose concept of “loyalty” required that White House instruction be obeyed even if in conflict with law and the tradition of independence. The entire apparatus of secret police and intelligence would have been in the hands of men willing to break any law and violate any principle to achieve their own ends.
President Nixon has usurped authority that is not his, and used his power — both legal and lawless — to undermine justice, liberty and the general welfare. In so doing he has presented us with an historic choice: We can impeach or, through inaction, acquiesce in an executive power which some day, in stronger and more ruthlessly intelligent hands, will overwhelm the democracy. The moral of Watergate would then become not that the Constitution is dead, but that it is impotent to resist a President ambitious and skillful enough to destroy it. If that power exists, that kind of President will come. The inevitability of such abuse was so clear a lesson of history that it was made the basic principle of our constitutional democracy.
Men must have power, but they cannot be trusted with power. “In questions of power,” wrote Thomas Jefferson, “let no more be heard of confidence in man, but bind him down from mischief by the claims of the Constitution…. That confidence is everywhere the parent of despotism.” Impeachment is the only protection in the entire elaborate constitutional structure against the kind of abuse and corruption of executive power which has now been unmasked. There remain no legal or constitutional doubts about the appropriateness of impeachment.
The issue is now one of politics: Have decades of erosion and years of subservience stripped Congress of the will to perform its constitutional obligation? Or have so many of its members become implicated in the general corruption of the time that they are afraid to expose and censure the abuses of others? Senator Gurney’s militant support of the Administration during the Watergate hearings is less of a mystery now that we have learned of his own involvement in kickbacks and secret funds. The failure of Congress to make any thorough investigation into the mounting evidence that private and public corruption exist on an unprecedented scale creates a suspicion that some of its members are involved with those same private interests which have been the beneficiaries of executive lawlessness.
One longs for an Estes Kefauver to summon the head of Pepsi-Cola, President Nixon’s great friend and benefactor, to explain how he received an exclusive contract with the Soviet Union; or to determine why none of those who conspired to defraud farmers and the public of hundreds of millions of dollars in the Soviet wheat deal have been indicted. The catalog of fraud and special favors is so long that it can be explained only by a large-scale conspiracy between the government and private interests. The worldly and cynical men who inhabit Congress know this even better than we. Yet little is done. It is as if everyone was represented in the government except the people.
However, the principal restraint on the Congress is not personal corruption or vulnerability to executive intimidation but political timidity. The impeachment of the President would be a matter of great controversy; and the avoidance of great controversy is the staple of modern politics. The great majority of a congressman’s constituents might favor impeachment, but if there is no impeachment, voters are unlikely to hold the inaction of the entire Congress against their own representatives. But in almost every state and congressional district there is a hard core of Nixon supporters who would work to defeat any member who led the fight for impeachment. Should impeachment try and fail, perhaps even if it succeeded, the Nixon loyalists would oppose a legislator’s re-election, while there is no assurance that his participation in the impeachment would bring him new, and counterbalancing, support.
“No rational man can believe that the Administration will voluntarily disclose evidence that might drive it from office and send its members to jail. Even God did not receive a voluntary disclosure from Adam about the apple, although, like Congress, He already knew the answer.”
This natural caution is fortified by partisanship: Republicans who feel that impeachment would only increase the damage already done to their party; Democrats who believe their chances for the presidency in 1976 are greater if a crippled administration remains in power. This calculation may be inaccurate but it is the kind which politicians make, and it leads toward the conclusion that the safest course of all is to have no impeachment, certainly to avoid the perils of leadership in so uncertain and momentous a struggle.
Against a wide variety of restraints, fears and cautions, there stands only the constitutional obligation of the Congress to defend the principles of representative democracy and guard the liberties of the people.
The prosecution of the President, Alexander Hamilton explained, “will seldom fail to agitate the passions of the whole community.” A “trust” of such “delicacy and magnitude” would concern “the political reputation and existence of every man engaged in the conduct of public affairs….” Hamilton asked: “What other body [than the Senate] would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers.“
The answer is no one — not courts, nor committees, nor special prosecutors — but Congress alone can judge whether a President has forfeited his right to office by his own conduct. Indeed, congressional impeachment is the only process through which we can hope to uncover the full extent of executive misconduct. If, as may well be, Congress is also impotent, then an unscrupulous President is limited only by his own skill and imagination.
Nevertheless, despite all the political restraints — natural caution, partisanship or personal motive — it is difficult for Congress not to act. For they are confronted with the strongest case for impeachment in our entire history. Could one take a secret, untapped poll of the Congress — not on the wisdom of impeachment — but on the President’s personal responsibility for the perversion and corruption of executive powers, the verdict of guilty would be close to unanimous. Every member of Congress also knows that the great majority of people in every section and state of the country are convinced of that presidential responsibility, even though many may not want him impeached. Moreover, most of that opposition to impeachment is not equivalent to support for the President. It reflects the general fear and insecurity which the Nixon administration has itself intensified, and it would evaporate once strong and effective voices explained that impeachment would bring, not a national cataclysm, but a restoration of principle and national stability whose condition is a shared confidence in the intentions and integrity of government.
That kind of leadership has not yet emerged.
The weight of evidence, the views of the public and their own convictions make it impossible for Congress to disclaim the possibility of impeachment. The strategy, then, is one of evasion, and it takes many forms. Among them is to direct energy and attention to marginal or irrelevant issues — most of them involving the President’s willingness to “cooperate” with this court or that committee in furnishing them secret evidence of his own misdeeds. No rational man can believe that the Administration will voluntarily disclose evidence that might drive it from office and send its members to jail. Even God did not receive a voluntary disclosure from Adam about the apple, although, like Congress, He already knew the answer.
It is true that in a moment of panic, fortified by ignorant arrogance, Archibald Cox was appointed special prosecutor. Only an administration confined in its own fantasies could have made such an appointment in the first place, and once it became clear that Professor Cox was not only principled but competent — that he might actually uncover some of the truth — he was fired. That act was damaging, but the President had no choice. For to keep Cox in office would have been fatal. It is the most wishful of delusions to believe that a President so fearful of an independent investigation that he was willing to risk his remaining public support in order to avoid disclosure, would then appoint another man he could not control. It is not the responsibility of the President to impeach himself.
Most of the strategy of evasion has been more subtle, consisting, in large part, of misrepresenting the nature and function of impeachment and the evidence needed to justify impeachment; while suggesting that courts or congressional committees are more appropriate or effective ways to proceed.
Those who wrote the Constitution made clear the function of impeachment. James Madison — the subtlest intellect among the founders — “thought it indispensable that some provision should be made for defending the community against the incapacity, negligence or perfidy of the Chief Magistrate.” A limited term was not “sufficient security,” since, once elected, he might “pervert his administration into a scheme of speculation or oppression.” Randolph spoke of the need to punish an executive who would have “great opportunities of abusing his power, particularly in time of war….”
Words like “incapacity,” “negligence,” “abuse of power,” “perfidy” are not drawn from criminal statutes. They are tokens of an intention and purpose which emerges with irrefutable clarity from the historical record. Impeachment was not designed to punish crime but as a barrier to the abuse of power and a decisive recourse against an executive who, through incompetence, corruption or ambition exceeded the limits of his office, thus imperiling the common welfare and the principles of republican government.
“What, it may be asked,” wrote Hamilton in the 65th Federalist, “is the true spirit of the institution itself? Is it not designed as a method of National Inquest into the conduct of public men?…The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from abuse and violation of some public trust. They are of a mature nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.”
Hamilton’s description denies the most frequent evasion: the demand for a convincing demonstration — hard evidence — of the President’s personal involvement and responsibility prior to impeachment.
Impeachment is not a ritual of condemnation, a formal confirmation of established guilt, but a method for determining whether a suspected President has abused or corrupted his office — a “National Inquest.” It is, indeed, the only way to sweep away the apparatus of secrecy and control, deception and privilege, coercion and promise of reward, through which the President can conceal his conduct. Impeachment transforms the House into a grand jury, the Senate into judge and jury, and the President into a defendant. Accused of violating his office, he cannot claim its privileges — refuse his personal testimony, withhold his documents. All the records and officers of government are subject to an examination whose scope is limited only by the need to protect democratic principle.
It would be difficult for an impeached President to use his powers and secret files to bribe or intimidate a majority of the House and a third of the Senate, especially since his assistants and officials — General Haig and the tax man — can be compelled to testify to his instructions and their acts. Even the most loyal of subordinates or co-conspirators would hesitate to commit perjury before a formal assembly of the entire Senate, presided over by the Chief Justice of the United States, knowing, moreover, that the President’s power to protect and reward him might soon be gone.
Most of the evidence we already know is the result of almost chance revelation. It is more than reasonable to believe that many offenses are still concealed. We cannot rely on a mystic faith that the truth will out. The truth has no autonomous urge toward exposure. It may be uncovered. Impeachment alone can reveal the full extent to which the trust and liberties of the people have been violated.
It is part of the strategy of evasion to contend that alternatives exist, that courts or congressional committees can do the job. But court proceedings are limited to specific criminal violations. Prosecution and the presentation of evidence are largely in the hands of the President’s men. Moreover, even if the courts had broader powers and jurisdiction, it is inconceivable that a judge or group of judges could assume authority to overturn a national election, to displace the leadership chosen by the entire people. No court could even compel a defiant executive to submit to its process, since he controls the instruments for court decrees. The inadequacy of the judicial process to protect against executive usurpation led the Framers to exclude the judiciary from impeachment. For the purpose of prosecuting the President, Hamilton explains, the “Supreme Court would have been an improper substitute for the Senate.”
Although congressional committees have helped to eliminate any doubt of the need for a National Inquest, the inquest in itself is beyond their power. No serious challenge to the President’s right to remain in office can be expected from a group which must request, and be refused, an invitation to visit the accused in the hope he might tell them what he had done.
Accusation and judgment of the President imperil the reputation and careers of all involved. The Framers knew that no formal structure could guarantee resistance to an oppressive President, but they decided that the best hope of resistance was to vest responsibility for impeachment in the entire membership of both houses. For that responsibility could only be met by those whose own credit and authority is strong enough to withstand the counterassaults of the executive and reconcile the country to their decision — by a body numerous enough to diffuse responsibility and reduce the danger of executive bribery or coercion.
There are no precise standards to instruct Congress as to when it is obliged to impeach. Proof of guilt is neither required nor possible. Substantial evidence must point toward the possibility of official misconduct. One can imagine cases in which it would be difficult to decide if the known facts were “substantial.” This is not one of them.
“Impeachment would not, as some have argued, disrupt and immobilize the country. It is hard to see how the country could be hurt by a temporary suspension of the present incompetence. The economy is in disarray, the agencies of government virtually paralyzed and the people divided and insecure.”
The most prominent of the “Watergate” offenses involves the 1972 election. President Nixon would probably have won without the services of amateur and professional criminals — on a scale still undetermined—but that does not make his election democratic. The right to a free election belongs to the American people. If the process of choice is corrupted, then the result of that choice is unconstitutional, and the power it bestowed is illegitimate — even if polls and surveys showed unanimous national approval. The Watergate violations have obscured evidence of the lawless extension of executive power to every function of government. The most dangerous of the Nixon offenses are beyond the scope of any criminal investigation. It has been reported, for example, that the director of the Central Intelligence Agency participated in secret operations in direct violation of the statutes which prohibit that agency from activities within the United States. One can conceive of no assumption more menacing than a belief that the laws of the United States can be suspended by an order of the Executive. Even Congress, though it may amend the laws, cannot sanction their violation. We also know that the telephones of government officials and newspaper reporters were tapped in an effort to discover the source of “national security leaks.” The implication is that executive officials may decide that certain activities are a threat to national security, if no law is being violated, and initiate a virtually unrestricted surveillance of the professional and personal lives of all suspected individuals.
Even judicial independence and the legal process itself have not been exempt from executive depredations. Evidence has been destroyed, witnesses bribed or intimidated, and cases involving large corporations have been fixed. Regulatory agencies of government — already more devoted to the interests of the businesses they regulate than the public they were established to protect — have been deprived of their remaining independence and placed directly in the service of private interests.
If one looks at any particular incident, it is difficult to establish the personal responsibility of the President. But to exempt him from any involvement in such large-scale perversions of executive power strains the most wishful credibility. The only rational presumption is that he knew about, and directed, his subordinates in the most significant decisions of government and politics. That presumption is shared by most of the American people, and nearly all those in public life — whether they say so or not. That probability is not only grounds for impeachment, it requires impeachment, so the country may discover that truth which no innocent man has cause to fear.
In the counsels of congressional power there is another kind of debate about impeachment. It assumes the President’s responsibility, but asks if the country might suffer more damage from the process of impeachment than by allowing the President to remain in office. Such arguments are dangerous. They appeal to principled men who might otherwise take the lead, and permit others to convince themselves that political expediency is the course of wisdom and restraint.
A well-known senator said in conversation that, “We all know that he should be impeached but liberal Democrats shouldn’t take the lead.” The sentiment is not un-common. Indeed, for a while it seemed as if everyone in Congress was waiting for Barry Goldwater to impeach the President. But the President’s radical attack on the democratic structure is dangerous and offensive to liberalism and conservatism alike. Liberals are not excused from their sworn oath to defend the Constitution. Nor would the country regard a liberal challenge as unfair partisanship, and spring to the President’s defense. Public revulsion and distrust cut across all ideological lines running, if anything, more deeply among those traditional conservatives who have opposed the liberal effort to increase presidential power. The people know the truth and would not misunderstand. Indeed it is the failure of liberals to act which appears as political opportunism. And rightly so, especially among the crowd of senators who think of themselves as possible presidential candidates.
The President tends to justify his own actions by obscure references to the mysteries of national security. This is only the latest and most monstrous version of a contention as old as the Cold War: Democracies are handicapped because their leaders are restrained by constitutional procedure and the need for public debate. Were this true it would still not be justifiable, but experience has proven it false. The ability to exercise absolute power in absolute secrecy has given the Russians no advantage. Their record of failures and mistakes is at least equal to our own. America’s most wounding errors, from the Bay of Pigs to the war in Vietnam, came when the Executive acted as if the national security were his alone to determine and protect. We have seen that a President cut off from public counsel and debate can make the gravest misjudgments. Indeed, the growth of secret executive government is itself the greatest danger to national security. Like the military officer who explained that he had to destroy a Vietnamese village in order to save it, the apologists for an unrestrained executive power are telling us that we must give up our liberties in order to protect them. And in any event most of the current offenses have more relevance to the political and financial security of the Administration than to the security of the country.
The dangers of the modern world have not made the Constitution obsolete. When the Framers assembled in Philadelphia, in 1787, the security of the nation was in far greater jeopardy than it is today. They represented a confederation of poor states, populated by more than three-million people and almost without a military force. Great Britain occupied our northern border and patrolled the Atlantic. Its army was to burn Washington, D.C., while the men who founded the nation and wrote the Constitution were still in power. To the south and west was the Spanish empire, a continuing danger to our frontiers and their expansion, a source of hostility and recurrent violence for almost a century, until the War of 1898 broke the Spanish power and secured the continent. The America of 1787 was swarming with foreign agitators, suspicion of treason and the purveyors of treason. And only the year before, Captain Daniel Shays had led an armed rebellion against the government of Massachusetts, arousing fear of further domestic insurrections.
These dangers helped persuade the Framers that a strong central government and a vigorous executive power were necessary. But they were also aware of the need to protect the country against a strong Executive. They bestowed no authority on the President which could not be checked or restrained by another branch of government, by the states or by the people. “No point is more important,” said George Mason of Virginia during the constitutional debates, “than that the rights of impeachment be continued. Shall any man be above justice? Above all shall that man be above it who can commit the most extensive injustice.” There was no more strenuous advocate of a strong presidency than Alexander Hamilton. There was nothing to fear from such an Executive, he explained, because the Constitution contained two great precautions against executive abuses: periodic elections of the President, and his being “at all times liable to impeachment, trial and dismission from office.”
The power of impeachment was intended as a final safeguard against executive excess, not to protect Congress against the President, but the people against the state. It was not just a “power,” but an obligation of the Congress to defend democratic society against a corrupt or overweening Chief Executive.
We are now a great and wealthy power. Both the limits which President Nixon has transgressed and the duty of Congress to challenge those transgressions were imposed by the leaders of a struggling and vulnerable land on the edge of a hostile continent. If we sacrifice the protections which the Framers provided, it will not be because the world is more dangerous, but because we have lost their confidence in democracy.
Impeachment would not, as some have argued, disrupt and immobilize the country. It is hard to see how the country could be hurt by a temporary suspension of the present incompetence. Indeed, with the exception of Henry Kissinger, the country has been without effective leadership for almost a year. The economy is in disarray, the agencies of government virtually paralyzed, the people divided and insecure.
If there is no impeachment, no final decision, we confront the almost certain prospect of a nation consumed with distrust and animosity toward its government for the next three years. The current decline will continue; since some form of shared confidence is necessary not only to effective government but to a growing economy. The people will be the principal victims but they will be joined by those large private interests — manufacturers of automobiles and bank directors alike — which this Administration has labored so valiantly to serve. Nor will politicians be exempt. No member of Congress who participates in the failure to resolve this matter, who refuses the people a verdict, can claim the people’s trust or personal exemption from responsibility for the consequences to the country.
It is this last which offers the best hope that the political barriers to impeachment can be overcome. Resolutions for impeachment are now before the House on the Judiciary Committee. The appointment of a staff and chief counsel will be the first sign of its intention: a thorough and skillful investigation or further evasion. However, there will be no impeachment, no matter what the committee does, unless groups of citizens in every congressional district are organized and pledged to oppose the re-election of any representative who does not support that full inquiry into presidential conduct which impeachment alone can provide. If there is to be political penalty for inaction, then congressmen will be more willing to take the risks of action.
Impeachment and even conviction will not by itself end the danger from a swelling executive power which, over decades, has been divesting itself of accountability to the law, to the representatives of the people, and to the people themselves. Increasingly, the government has been sequestered in the White House, led by men who cannot be made to account for their actions or, indeed, even to disclose them.
The affairs of the nation are administered in secrecy. This hermetic executive power has been steadily acquiring domination over a formidable machinery for harassment, intimidation and control — not only through agencies such as the FBI and CIA, but through an immense unregulated power of economic sanction and reward.
President Nixon has shown us the dangers of this evolution; how readily the independence of institutions can be destroyed, and executive government bent to the interests of a single man. His impeachment will not end the danger. The apparatus of abuse must also be dismantled, the executive power reduced and confined to limits consistent with democratic government. But it will not be easy. For this monstrous growth reflects, and is, in part, a creation of the huge industrial and financial bureaucracies which have come to dominate the American economy and much of American life.
Our current difficulties reveal large and fundamental questions. Impeachment will not resolve them. But it is our only chance to restore that sense of shared social purpose without which no question can be answered and no problem overcome. If one frees himself from the details of controversy for a moment of detached observation, it seems inconceivable that a man, a single man, who has so abused the principles and institutions of this country should go unchallenged by the representatives of 200 million people. If impeachment proceeds, the President will go on trial. But during the current debate it is Congress and the country which are on trial.