November 20, 1973
Page 37768
RESOLVING WATERGATE: AN INDEPENDENT SPECIAL PROSECUTOR, AND THE POSSIBILITY OF IMPEACHMENT
Mr. STEVENSON. Mr. President, in a speech to the University of Nevada on November 16, my colleague from Maine, Senator EDMUND S. MUSKIE, delivered a thoughtful analysis of the crisis of confidence posed to the Nation by Watergate. Taking note of developments since the President fired Special Prosecutor Cox October 20, Senator MUSKIE pointed out that:
The prospect of full disclosure is yet only a hope, and without more assurance than the President has given us so far, we cannot have the necessary confidence that all the facts of Watergate will be laid bare, and that all Watergate wrongdoers will be brought to justice.
Mr. MUSKIE pointed out that a special prosecutor who was made truly independent, by legislation now pending to vest his appointment and dismissal in the Federal District Court of the District of Columbia, might succeed in providing the exposition of Watergate that the American people demand. And he added that if a special prosecutor failed to uncover all the facts of Watergate, and if the facts show that the President "may have violated the trust of his office," impeachment of the President might be appropriate.
Mr. MUSKIE concluded with a careful analysis of the Founding Fathers' decision to establish the impeachment process in the Constitution, and the application of that decision to our current situation. He expressed faith that if impeachment became necessary today, it would see the triumph of principle over partisanship.
Mr. President, I commend Senator MUSKIE's speech to my colleagues, and ask unanimous consent that it be printed in the RECORD, together with an article in the Las Vegas Sun of November 17 summarizing Senator MUSKIE's speech.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
SPEECH BY SENATOR EDMUND S. MUSKIE
I
The two issues I want to deal with are the need, in my view, to establish by law an independent prosecution of the Watergate scandals and the requirement that the House of Representatives continue the process it has now begun to inquire into the possibility of impeaching the President.
Four weeks have passed since the traumatic events of October 19 and 20 – when President Nixon announced his original decision not to comply with or appeal the order of the United States Court of Appeals to produce Presidential documents in answer to a subpoena, and shocked the Nation by dismissing Special Prosecutor Cox.
Those events brought to a climax a whole series of actions, charges, and statements which had weakened Americans' confidence in the integrity of the Presidency. And those events finally confronted us with the question – regrettable but unavoidable – of the President's fitness to remain in office. For whatever one's party, and whatever one's answer to that question at this time, there is no doubt that it is now a question foremost on the minds of Americans.
II.
Beginning with the firing of Special Prosecutor Cox, recent developments in the Watergate case have returned us again to the question of whether there will be a full investigation, in which the American people could have confidence, of the complex of corruption identified by the term Watergate. Three days after the Cox firing, the President announced his decision to comply with the Court of Appeal's order, and to submit to Judge Sirica the subpoenaed tapes and documents.
That decision was demanded by the American people with almost unanimous voice. That it was even in doubt demonstrates the gravity of the crisis the President has created – that there was even a question of whether the President would disobey the law in such a clear confrontation – proved to Americans that the fundamental principles of our government of laws were truly being challenged.
By his decision to comply, the President avoided one confrontation, and by his subsequent moves toward cooperating with the Watergate investigation he has partially revived the hope that the rule of law will bring us the entire truth of Watergate. But the prospect of a full disclosure is yet only a hope, and without more assurance than the President has given us so far, we cannot have the necessary confidence that all the facts of Watergate will be laid bare, and that all Watergte wrongdoers will be brought to justice.
We had once before been given such assurances by the President. In his public statement of May 22, 1973, the President said: "Executive privilege will not be invoked as to any testimony concerning possible criminal conduct or discussions of possible criminal conduct, in the matters presently under investigation, including the Watergate affair and the alleged cover-up."
Yet it was the President's claim of Executive privilege, to avoid providing full disclosure which led to the tapes decision, and the dismissal of the special prosecutor.
III.
The President's offense of firing Special Prosecutor Cox has still not been corrected. This act, and the resignations of the Attorney General and Deputy Attorney General, violated the understanding of the American people that there would be no interference with the Watergate investigation.
And now a Federal district court has told us that this act was illegal. But the court decision makes it seem that the President can legally rescind any regulations he chooses, including the new ones that supposedly protect Mr. Jaworski's independence. So the new prosecutor is still not safe in his job – not yet certain that the President has finally bound himself to observe fixed rules for the inevitable contest between the investigations and the White House.
Congress is now considering legislation to insure that the special Watergate prosecutor is made genuinely independent by being appointed and subject to removal only by the Federal district court. This procedure is well within our constitutional framework. Indeed, the possibility is given express sanction by the language of the Constitution, which provides that "Congress may by law vest the appointment of such inferior officials, as they think proper ... in the courts of law ..."
I hope that Congress will shortly pass this measure, and that the President will accept it in the spirit of accommodation he has so recently adopted. It would give the American people added confidence that the true facts of wrongdoing in Watergate will be exposed to public scrutiny.
For despite the President's new disclosure policy, the American people continue to demand a full and thorough exposition of those facts.
Missing and nonexistent tape recordings, and lax control of evidence held by the President, raise increasing doubts that any disclosure controlled by his discretion will ever be satisfactory.
It is not enough for the President to engage in private conversations, at his pleasure and in his domain, with Members of Congress.
For the American people have had enough of political maneuvering behind closed doors. Only an independent and open investigation process can provide the exposition they demand. An independent special prosecutor, or the Watergate committee, may provide that forum.
And if they fail – or if they uncover facts which suggest that the President, in fact, may have violated the trust of his office – our Nation has an ultimate forum: an impeachment by the House of Representatives, and a trial in the Senate, to give us a final resolution of accusations against the President.
IV.
For the charges which raise the question of the President's fitness to remain in office involve acts which challenge the fundamental nature of our democracy. To the list of charges and suspicions has been added the question of the integrity of evidence in the President's possession. But the list, extending backward in time, already includes charges of an unparalleled conspiracy to defraud the people of their rights to an honest election, to independent and thorough criminal justice, to constitutionally guaranteed civil liberties, and to an impartial and fair administration of public affairs, the list includes:
Charges that burglaries committed against a private doctor's office and a political party's headquarters were officially authorized.
Charges that suspects and key witnesses were offered bribes to keep them silent or promises to encourage them to lie.
Charges that journalists, Government officials, and private citizens illegally lost their privacy to official wiretappers, acting without court warrant.
Charges that independent Government agencies were pressured to abandon their impartial responsibilities in order to harass and intimidate critics of the administration and to show favoritism to friends.
Charges that the head of the F.B.I. was ordered to destroy evidence.
Charges that top officials of the C.I.A. were ordered to violate their agency's charter against interference in internal affairs.
Charges that a Federal judge was offered promotion while presiding over a crucial and controversial case.
And charges that a secret police agency was established in the White House with authority to break the law in order, supposedly, to protect national security .
Some of these acts allegedly involved the direct participation and decision of the President. Most of them involved men in the White House acting with what they took to be Presidential authority and approval. Much of their behavior appears grossly improper and some of it, in the preliminary judgment of grand juries, was illegal.
V.
But the overriding concern about all these actual and suspected breaches of law is the degree to which they were proper or improper exercises of Presidential authority.
These questions are among those which the full investigation of Watergate will explore. And while we withhold our judgments of them as that exploration proceeds, preparations for impeachment are going forward in the House of Representatives. But no decision has been made to proceed with a vote on impeachment.
Hopefully, that decision will never be necessary. But the possibility that it will requires that we consider carefully exactly what we mean by the impeachment process, and when and how it might reach culmination and the removal of the President.
VI.
Impeachment itself is no more than a majority vote by the House of Representatives that a trial should be held on removing the President from office. A House decision to impeach – in effect – to indict the President on specific charges – would lead to a trial in the Senate, with the Chief Justice of the United States presiding, requiring a two-thirds majority vote to convict the President and dismiss him from office.
This process of impeachment by the House and trial by the Senate is no more and no less than a means for making a final judgment on whether official conduct by a Chief Executive violates fundamental rules evolved in our system for setting limits on the conduct of public officials.
Our founding fathers' decision to include in our Constitution this process for making such judgments helps us understand the prospect of impeachment today. They knew the dangers of providing for removal of the Chief Executive, but they agreed that the possibility of Government lawlessness required a remedy.
VII.
The authors of the Constitution first considered the basic question of whether the President should be impeachable at all. In creating the office, they attempted to strike a balance between independence of Executive action, and the separation and checks of powers among our three branches of Government. With sophistication and understanding they decided that the President should be subject to the ultimate check, removal from office, outside the normal electoral procedure.
In this decision they had in mind the experience of British history, especially the British people's actions in the preceding century against oppressive monarchs and corrupt officials. They knew that during the 17th century impeachment had been used as an important tool for removing chief ministers of the king. There had been more than 50 impeachments in Britain in the past two centuries to reflect upon.
VIII.
With this history behind them, and the outlines of the United States Government before them, the framers decided for two basic reasons to adopt the principle that the President should be removable through impeachment.
First, they felt that impeachment and removal was necessary to check abuses of the President's power.
For instance, James Madison, according to the records of the convention debates, "Thought it indispensable that some provision should be made for defending the Constitution against the incapacity, negligence, and perfidy of the Chief Magistrate. The limitations of the period of his services was not a sufficient security." In short, they wanted a means to put the President out of office in order to protect the Nation from the consequences of his wrongful actions.
And a second reason for including impeachment in the Constitution was to furnish a procedure for passing judgment on the President's conduct. Aside from stopping any abuses, the procedure would allow the Nation to affirm the high standards of official conduct it expected.
Elbridge Gerry of Massachusetts expressed the hope of the Founders that "the maxim would never be adopted here that a Chief Magistrate could do no wrong." George Mason of Virginia declared that when great crimes were committed he was for punishing the principal as well as the accomplices. Edmund Randolph of Virginia declared that guilt, wherever found out, should be punished.
We hear this sentiment echoed everywhere today – that high officials, including the President, should not – because of their office – escape judgment for wrongs they commit.
Ben Franklin, drawing on his European experience, told the Philadelphia Convention of a Dutch prince suspected of treachery:
"Yet as he could not be impeached and no regular examination took place, he remained in his office, and strengthening his own party, as the party opposed to him became formidable, he gave birth to most violent animosities and contentions. Had he been impeachable, a regular and peaceable inquiry would have taken place and he would, if guilty, have been duly punished, if innocent restored to the confidence of the public." Franklin concluded that: "It would be the best way therefore to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused." The impeachment and removal process thus was seen as a mechanism for resolving a national crisis of confidence.
So the Convention voted to make the President impeachable, and subject to removal from office. It was on another day, six weeks later, that the convention made the final decision on exactly how that process of impeachment and removal should operate.
Again, the Framers drew on British practice – impeachment by the House of Commons, and conviction by the House of Lords, on broad categories of charges, such as subversion of the Constitution, betrayal of trust, negligence of duty, corruption, and encroachment on the prerogatives of parliament.
X.
The Framers established three classes of offenses as a standard for impeachment and conviction: treason, bribery, and high crimes and misdemeanors. Treason was defined in the Constitution; bribery was defined by common law. And by high crimes and misdemeanors the Convention consciously and specifically referred to the categories of political offenses, against the State, which had already been given meaning by the British experience.
The category of offenses embraced by the term high crimes and misdemeanors, according to that British experience and to our own limited history of impeachments, covers far more than acts which might be indictable under normal criminal law. The category includes political crimes – offenses which amount to a violation of the trust of the office.
James Madison gave one example of such an offense when he argued that a President, having the sole authority to dismiss subordinate executive officials, would also be accountable for their actions in office. The President's authority over his appointees. Madison said, "will make him ... responsible for their conduct and subject him to impeachment, if he suffers them to perpetrate with impunity high crimes and misdemeanors against the United States or neglects to superintend their conduct so as to check their excesses."
XI.
These and other political crimes violate the trust of office because they offend the political compact essential to the grant of high Government office.
This compact includes understanding that citizens shall obey the acts of Government reached through due process, and that the Government shall respect the rights of the people expressed in our laws and Constitution. And fundamental to this compact is the principle that the men who occupy high office shall also respect these standards – both as men subject to the law and the Constitution, and as representatives of the Government to which the law and Constitution also apply. Violating those standards – or negligently allowing them to be violated – destroys the understanding that permit a free government to operate.
The Framers thus established that a political transgression against the American people – violations of the trust of office in the form of treason, bribery, or high crimes and misdemeanors – should be met by the impeachment and removal process, so that through the Congress the American people could protect against abuses in office, and so that the highest standards of political conduct, and the political compact, could be affirmed.
This is the process to which we may be forced to turn. But that course will never be enforced on us blindly, and we must judge whether the dangers of partisanship and division in that process could be more harmful than the evil it would correct.
XII
The framers knew that allowing judgment on the most fundamental of political questions through the impeachment and conviction process raised the danger that partisanship would overwhelm philosophy. But they provided us the option of impeachment in the hope that principle would transcend partisanship.
We had an experience with a partisan impeachment in the case of President Andrew Johnson.
Attacked by the reconstruction Congress, and trapped into disobeying a tenure of office act which most now agree was itself unconstitutional, the Johnson impeachment lasted three full months in the spring of 1868. Of that time, seven weeks were taken up by a trial in the Senate on the impeachment charges. And at the conclusion of that trial, the Senate declined to give in to partisanship and acquitted the President.
I do not believe it likely that the partisanship of the process will ever be repeated. I have faith that an impeachment proceeding today – although it may have its partisan elements – would see the triumph of principle. I believe that it could grant us a resolution of the lack of confidence throughout the Nation in the adherence of the Presidency to the rule of law.
The American people demand and deserve a resolution of this crisis of confidence. It could result in a President vindicated – perhaps with the country still debating his policies, but with the trust of his office intact.
Or it could end in the departure of the President from office – to be succeeded by a new Vice President confirmed under the 25th amendment, or by a special election to be established by law.
The process of impeachment offers us a means to resolve the drama of Watergate. We may be spared that prospect. But we must be prepared to face it if necessary to preserve the integrity of our constitutional system.
[From the Las Vegas Sun, Nov. 17, 1973]
IMPEACHMENT MAY BE BEST: MUSKIE
Sen. Edmund S. Muskie (D-Maine) said last night the American people "demand and deserve" an end to the Watergate drama and impeachment of President Nixon may be the only answer.
He stopped short of calling for impeachment but said the events of recent weeks and months have "confronted us with the question – regrettable but unavoidable – of the President's fitness to remain in office."
His remarks were made in a speech at the University of Nevada, Las Vegas.
"The American people demand and deserve a resolution of this crisis of confidence," Muskie said. "It could result in a President vindicated – perhaps with the country still debating his policies, but with the trust of his office intact.
"Or it could end in the departure of the President from office – to be succeeded by a new Vice President confirmed under the 25th Amendment – or by a special election to be established by law.
"The process of impeachment offers us a means to resolve the drama of Watergate. We may be spared that prospect, but we must be prepared to face it if necessary to preserve the integrity of our constitutional systems."
He said "the gravity of the crisis the President has created" is such that it cannot be resolved solely by Nixon's current efforts to take his case to Congress and the people.
"The prospect of full disclosure is yet only a hope, and without more assurance than the President has given us so far, we cannot have the necessary confidence that all the facts of Watergate will be laid bare, and that all Watergate wrongdoers will be brought to justice," he said.
"For despite the President's new disclosure policy, the American people continue to demand a full and thorough exposition of those facts. Missing and non-existent tape recordings and lax control of evidence held by the President raise increasing doubts that any disclosure controlled by his discretion will ever be satisfactory.
"It is not enough for the President to engage in private conversations, at his pleasure and in his domain, with members of Congress. For the American people have had enough of political maneuvering behind closed doors."
Only impeachment, he said, "could bring us a final resolution of accusations against the President" if investigation of the scandal fails or if facts suggest Nixon has violated the trust of his office.