By Daniel Cotter*
On October 31, 2019, the House voted along party lines, 232-196, to formalize the impeachment inquiry procedure. Republicans had insisted that the process must be formalized and that a vote was required before the House could conduct an impeachment inquiry. That insistence is misplaced and is a myth of the impeachment process that is not supported by the Constitution or by the past impeachment processes of the presidents.
President Andrew Johnson was the first president to be impeached. His impeachment process moved quickly from his action on February 21, 1868, when Johnson fired Secretary of War Edwin Stanton without congressional consent, in violation of the Tenure of Office Act. Three days later, the House voted along party lines, 128-47, to impeach Johnson. There was no impeachment inquiry, and on February 29, 1868, the House committee reported ten articles of impeachment.
President Richard Nixon was only the second president for whom the House began to consider the question of impeachment. In his case, the process took place mainly out of the public eye even though we tend to remember the televised investigations. On October 30, 1973, ten days after the Saturday Night Massacre, the House Judiciary Committee voted, 21-17, to give its Chairman, Peter W. Rodin, Jr., the power “to issue subpoenas without the consent of the full committee.” For the next several months, until February 6, 1974, when the House formalized the impeachment inquiry by a vote of 410-4, the Judiciary Committee operated mostly in private.
On February 6, 1974, the House passed Resolution 803, which “provid[ed] appropriate power to the Committee on the Judiciary to conduct an investigation of whether sufficient grounds exist to impeach Richard M. Nixon, President of the United States.” But even after the vote, the House Judiciary Committee operated mainly in closed session. On May 9, 1974, the House Judiciary Committee opened public hearings on the question of impeaching President Nixon. The open hearings lasted for twenty minutes. As Woodward and Bernstein wrote in their book, “The Final Days”:
“At 1:08 P.M., Chairman Peter Rodino brought down the gavel to open the House Judiciary Committee’s formal hearings on impeachment. The ceremony, following seven months of staff investigation, was carried live on national television for twenty minutes. Then, after a brief debate, the committee voted, thirty-one to six, to close its doors for business- consideration of the evidence.”
For the next two months, the Committee remained behind closed doors until it began debate on articles of impeachment. The Committee eventually recommended three articles of impeachment against Nixon. Because Nixon resigned before the full House could vote, not much of the actual impeachment inquiry was conducted in the public’s view.
President William Clinton’s timeline also does not support the myth of full public hearings and debate over whether to impeach a president. In Clinton’s case, a special counsel was appointed in January 1994. More than four years later, the Starr Report was delivered to the House. Two days later, the House passed Resolution 525, “[p]roviding for a deliberative review by the Committee on the Judiciary of a communication from an independent counsel, and for the release thereof, and for other purposes” and authorizing the House Judiciary Committee to determine “whether sufficient grounds exist to recommend to the House that an impeachment inquiry be commenced.”
On October 8, 1998, the House adopted Resolution 581 with procedures similar to those for the Nixon impeachment. On November 19, Starr was interviewed by the Committee in a public hearing. But between the time of the resolution and the midterm elections on November 3, the Committee held no serious impeachment-related hearings. Starr’s interview was one of the few efforts the Committee took to do any investigation into Clinton’s alleged wrongdoing.
An examination of the three impeachment inquiries in our nation’s history is instructive in overcoming the myth put forth by the White House and Republicans that President Trump is being treated differently from other presidents. It is simply not unusual for most of the investigation and activity preceding formal articles of impeachment to occur without public hearings.
* Daniel Cotter is a lawyer practicing in Chicago. He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).