Congressional Democrats face a fundamental decision — one that is both constitutional and political — about the scope of their ongoing impeachment inquiry: Whether to court potential political controversy and conduct a broad investigation, or to play it seemingly safe and limit their focus to the Ukraine issue, which has seemingly coalesced voters’ sentiment in favor of impeachment.
While limiting impeachment to the Ukraine episode has the advantage of the offense being more readily explained to the American public as a breathtaking breach of the president’s oath of office, on balance both history and political considerations point to the benefits of offering multiple articles of impeachment.
The Ukraine-only approach would, at least as it is conceived of now, confine the inquiry to events surrounding the July 25, 2019 telephone call in which President Donald Trump sought a “favor” from the president of Ukraine: Obtaining political dirt about Joe Biden. This egregious and easily-understood flagrant abuse of power outlined in the now-released whistleblower’s report, has accelerated support for impeachment among congressional Democrats; House Democrats have made a flurry of demands for documents and interviews, warned Trump administration officials that they are obstructing Congress if they stymie their investigation, and prompted frenzied reaction by Trump.
But the alternative approach Democrats could consider would broaden the focus to include other impeachable offenses — the foremost being the 10 alleged acts of obstruction of justice by Trump detailed in former special counsel Robert Mueller’s report.
By doing so, they could actually insulate any eventual impeachment vote from some political considerations, rather than endanger it. Impeachment history provides intriguing examples of how the Senate could evaluate multiple articles of impeachment, and how they work in favor of those seeking a president’s removal from office.
In 1936, Judge Harold Ritter was impeached by the House. Six articles of impeachment alleged specific acts of misconduct, which the seventh article was an accumulation of the prior six. The Senate acquitted Ritter on each of the six specific claims, but convicted him on the seventh article and removed him from office. When Ritter challenged the vote, the Senate president pro tempore stated that the seventh article charged general misbehavior which is “a separate charge from any other charge.”
And, of course, in 1974, the impeachment inquiry staff of the House Judiciary Committee investigated a wide range of potentially impeachable conduct by President Richard Nixon. While obstruction of justice in the Watergate cover-up remained the core of the investigation into and impeachment over Nixon’s misconduct, the staff investigated others — including campaign finance violations — that were never presented to the committee. And, in the end, the committee voted on five total articles of impeachment, adopting three and defeating two.
The two articles of impeachment ultimately rejected by the committee were based upon Nixon’s secret bombing of Cambodia during the Vietnam war and Nixon’s violation of the emoluments clause and alleged tax fraud.
Article I of the impeachment vote — which six Republicans on the committee supported in a 27-11 vote — charged Nixon with obstruction of justice in the Watergate cover-up. Tellingly, Article II, which collected seemingly disjointed acts by Nixon to charge the president with abuse of power, garnered one additional Republican congressman’s vote (28-10).
The acts incorporated in this second charge included his attempt to use the Internal Revenue Service to audit Nixon’s political enemies; use of the FBI to illegally wiretap journalists and federal employees; the creation — using campaign finance money — of an illegal secret investigative unit in the White House called the “Plumbers,” which burglarized a private office; Nixon’s violation of his presidential oath by failing to investigate these listed abuses; and misuse of the powers of the FBI, CIA and Department of Justice. Treated together in a single article of impeachment under the rubric of abuse of power made the case for impeachment vastly more compelling than any single act did.
Finally, in vindicating the House of Representatives’ constitutional powers, Article III of the impeachment vote charged Nixon for his stonewalling of the committee’s subpoenas and thereby impeding its inquiry.
Then, after the committee voted, the Supreme Court ordered Nixon to produce the White House tapes, which ultimately revealed Nixon’s efforts to use the CIA to block the FBI investigation of the Watergate burglary. As a result, 10 of the Republican committee members who had voted against all articles of impeachment wrote an addendum to the committee’s final report in which, while defending their initial votes, they changed their position on Article I because Nixon committed “certain acts for which he should have been impeached and removed from office.” (They then restated their continued opposition to the other two articles approved by the committee.)
Politically, it seems, having multiple impeachment charges allowed members — both Democrats and Republicans — to convey what they felt was a balanced judgment against the president, sometimes voting in favor of impeachment and sometimes against, based upon the seriousness of the offense and the strength of the evidence.
Thus, if today’s Democrats offer a vote on impeachment based solely on Trump’s scheme to direct Ukraine’s president to investigate his political opponent, they may be offering too stark an up-or-down vote on all the president’s actions, rather than allowing members to express more or less condemnation on aspects of it.
Besides which, offering one charge could set a troubling precedent that may haunt Congress in the future. Without an article of impeachment based upon obstruction of justice, history may judge that the House blessed Trump’s use of presidential power to protect his first campaign and himself from criminal investigation. Or, by failing to defend the House’s constitutional role, Trump and future presidents may be encouraged to defy congressional subpoenas and invoke unsupported claims of executive privilege.
But by voting on three articles of impeachment based upon the Ukraine incident, obstruction of justice and interference with the impeachment inquiry, the House will have identified Trump’s worst presidential abuses of power and will have faithfully executed its duty to hold him to account. And then, it will be up to the Senate to execute theirs.
Michael Conway served as counsel for the U.S. House Judiciary Committee in the impeachment inquiry of President Richard M. Nixon in 1974. In that role, he assisted in drafting the committee’s final report to the House of Representatives in support of the three Articles of Impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago.