Blueprint for inevitable impeachment in 2019
Impeachment proceedings next year are inevitable. To avoid a circus, the House Judiciary Committee should study what happened in 1974, when congressional leaders set the gold standard for how to take such a radical step.
President Donald Trump already has been accused of a crime by federal prosecutors in New York for authorising pay-offs to buy silence from former sex partners to protect his 2016 presidential campaign.
That will probably be one of the least serious charges when Special Counsel Robert Mueller and various other prosecutors complete investigations into ties between the Trump campaign and Russian election interference that have already resulted in at least eight convictions and guilty pleas.
Some Democrats oppose an impeachment inquiry on the grounds that the necessary two-thirds vote for conviction would be impossible to get in a Republican-majority Senate. Some worry that it could backfire politically, as happened after President Bill Clinton's impeachment trial in 1999. But as more offences surface, action will be unavoidable.
Impeachment proceedings would start in the Judiciary Committee, which is populated by ideologues on both sides.
It is hard to see any of the committee's far-left Democrats agreeing to bipartisan co-operation, or any of the far-right Republican flame-throwers like Steve King of Iowa or Louis Gohmert of Texas acting seriously at all.
Once Democrats take over the House in January, the panel will be chaired by Representative Jerrold Nadler of New York, who is smart but dangerously drawn to microphones and cameras.
Already, he has injudiciously started speculating in public about impeachable offences.
Nadler would be well advised to look back at 1974, when the Judiciary Committee began an impeachment inquiry into the activities of President Richard Nixon.
The odds against proceeding to an impeachment trial were long at the time; even a month before the committee voted, the outcome was in doubt.
What turned the tide was a remarkably serious and fair-minded process and the courage of a handful of Republicans who put country ahead of party.
Even more remarkable was the performance of chairman Peter Rodino of New Jersey, who had been widely thought of as a political hack.
He rose to the moment, reluctantly moving forward by selecting an outside counsel with impeccable integrity and standing, and insisting that actions had to be bipartisan.
He bent over backward to accommodate reasonable Republican demands.
“In the end it was a political process, period,” recalled Francis O'Brien, Rodino's top aide. “The founders put this in the hands of Congress, not the courts.”
O'Brien helped pick the outside counsel, John Doar, once a Wisconsin Republican and later a celebrated deputy to Attorney-General Robert F. Kennedy.
Representative Tom Railsback of Illinois, an influential Republican, enlisted Albert Jenner, a top trial lawyer, as counsel to the GOP committee members. Doar and Jenner, two great professionals, worked well together.
Bill Cohen of Maine, one of the heroes then as a freshman House Republican, remembers days fraught with tension and still marvels at Doar's professionalism.
“He put the case together methodically, much as Mueller is doing now,” Cohen said last week. Cohen went on to become a three-term senator and served as Defence Secretary under Clinton.
In the spring of 1974, however, Democratic liberals tried to dump Doar and Rodino for moving too cautiously. The House majority leader at the time, Tip O'Neill, staved them off. If Nadler should rise to the occasion, no one is better suited to play the O'Neill role as intermediary to the party's left wing than incoming Speaker Nancy Pelosi.
Nadler also needs to find his Doar, perhaps someone like Seth P. Waxman, a former solicitor-general and lion of the Washington legal establishment, or a prominent, non-political Republican attorney.
The reflexively partisan Nadler could learn a lot from Rodino's approach.
As Doar built his case, the critical one-vote margin on whether to subpoena Nixon's tape recordings of Oval Office conversations rather than accept transcripts edited by the White House was cast by the Republican Cohen.
Subsequently Cohen, Railsback and a handful of other GOP moderates moved to impeachment on grounds of obstruction of justice and abuse of power.
Nixon resigned on August 8, 1974, just days after the Judiciary Committee adopted three articles of impeachment.
The case had been strengthened by Nixon's staunchest legal defender, Representative Charles Wiggins of California, who forced impeachment advocates to perfect their case before eventually joining them.
To be sure, it's hard to imagine a Republican on the current committee rising above partisanship, though two are worth watching: the veteran James Sensenbrenner of Wisconsin, who could play the Wiggins role, or a younger member like Georgia's Doug Collins, a former military chaplain.
Cohen noted that the committee won't have one advantage that was available to the House in 1974: A Senate committee that laid a lot of groundwork for their work, as the Senate Watergate Committee under Sam Ervin of North Carolina did in the Nixon era.
Cohen said that the House panel could begin with fact-finding sessions to decide whether to move to a full impeachment process.
Whatever they do, two terrific books could serve as useful guides.
One is an updated edition of Elizabeth Drew's 1974 account, Washington Journal: Reporting Watergate and Richard Nixon's Downfall.
Another is a compilation of historical essays, Impeachment: An American History, especially the chapter by Timothy Naftali, former director of the Richard Nixon Presidential Library.
The committee should also talk to the likes of Bill Cohen and Francis O'Brien. What the members do will shape how they're remembered 45 years from now.
Albert R. Hunt is a Bloomberg Opinion columnist covering politics and policy