Why did Richard Nixon resign just before the House would have held a vote on his impeachment? We were taught, I think, that the evidence against him was so compelling, the threat to our ideals so clear, that he resigned because it was clear to him that conviction in a Senate trial was inevitable. Maybe Nixon’s reasoning was simpler than that, as Robert Reich points out in a recent piece in The Guardian. Passage of articles of impeachment by the full House may render a President unpardonable. It’s right there in our Constitution (the bold is mine):
The Constitution of the United States, Article II, Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
That’s plain English. Remember that impeachment is equivalent to indictment, not conviction. Impeachment is “the action of calling into question the integrity or validity of something.” It is the Senate trial that determines whether an official is removed from office. The House impeaches, the Senate holds a trial.
If Trump understands this, then he understands what is at stake in a full House vote on impeachment, a vote that could occur before Christmas. He is already under investigation for alleged crimes in the State of New York, state crimes that the federal President (Pence?) is not authorized to pardon. Were Trump impeached by a full House vote, he would be rendered unpardonable for federal crimes as well. He and his allies now claim that, as President, he is not currently liable, but once he is no longer President that immunity evaporates. A full House vote to impeach him would cost him the chance of a pardon, precisely the pardon Nixon got (negotiated?) with Gerald Ford. Does this awareness help explain Trump’s and his defenders’ increasing shrillness as the House proceeds?
Will Trump make this calculation and resign? Not likely. His instinct is to push division and conflict, hoping the propaganda machine he has assembled, his blaming the supposed evil forces of the “deep state,” will keep him in power by harnessing public opinion–broader concerns about the integrity of our governance and our Constitution be damned.
Much has been written over the years about Republicans and Democrats in the time of Nixon, statesman who leaned on Nixon to resign for the good of the country, fearing for the foundations of our governance, statesman who put their oath to the principles upon which this country was founded above their allegiance to their party and to Richard Nixon the man. Nixon chose an abruptly announced, face-saving exit, an exit complete with a presidential library and a mixed legacy. Nixon got all that in part because he resigned. The country was saved by Ford’s pardon of Nixon from a broader convulsion that would likely have followed a prosecution of Nixon’s crime after he left office. It is this chance of a pardon that Trump may be about to give up.
Keep to the high ground,
Jerry
P.S. My initial reaction to Robert Reich’s article was to dismiss it, noting I hadn’t heard any such thing before and there was probably some precedent, some legal opinion, that would undercut the plain words. However, consider this: We have never before had a President in office with so much obvious legal liability swirling around him, so many possibilities for prosecution after his presidency. There is no precedent–there are just the plain words of our Constitution. Bill Clinton didn’t need a pardon to protect him. Andrew Johnson’s impeachable offenses were arguments around Presidential vs. Congressional power, not crimes committed in the private sector. Nixon had enough sense of honor and respect for the country that he resigned rather than fight. If Trump has any such noble instincts he has yet to show them.
P.P.S. Andrew Johnson, after survival of his impeachment trial in the Senate, returned to Tennessee after his presidency ended in 1868 (Johnson did not run in the 1868 election). He eventually returned to politics. He went back to Washington in 1875, elected to the U.S. Senate by the legislature of Tennessee (that was before the 17th Amendment in 1912 that made Senators subject to the popular vote). Johnson’s return to Washington was made possible in part by the rise of the Ku Klux Klan, the suppression of voting of African Americans, and their resultant lack of voice in the Tennessee legislature, all of which Johnson’s policies as President tended to promote. Can you imagine Donald Trump quietly leaving office and pursuing a career as a politician? (See the section under Andrew Johnson “Post-presidency and return to Senate” in wikipedia.