President Donald Trump’s promise to shake things up in Washington has brought us back to unpleasantly familiar territory: talk of impeachment and obstruction of justice, this time involving the investigation into the Trump campaign’s dealings with Russia. But, just as it was with Richard Nixon and Bill Clinton, it is imperative to understand what the Founding Fathers intended when they created impeachment, and how allegations of obstruction fit into the constitutional framework for holding a president accountable for misconduct in office.
The framers established impeachment as a last resort, a check to be used to deal with presidential misconduct when all other mechanisms failed. Impeachment cannot and should not be done hastily, nor should it be done for reasons so flimsy they suggest politicians are merely jockeying for political advantage rather than protecting constitutional values.
The Clinton and Nixon examples offer crucial lessons about the importance of slowing down and ensuring that the public is confident that the gravity of the alleged conduct warrants the extraordinary remedy of Congress removing the president from office.
The Clinton episode offers a cautionary tale. In 1998, independent counsel Kenneth Starr’s office had spent months investigating the possibility that Clinton had lied under oath about the nature of his relationship with Monica Lewinsky and then, according to Starr’s referral to Congress for impeachment proceedings, obstructed justice by trying to conceal and destroy evidence of that relationship.
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Yet the failure of the House to undertake its own fact-finding, made it easier for Clinton and his defenders to attack the impeachment as both a rush to judgment and not being properly grounded in misconduct involving the president’s abuse of official powers. The Senate quickly disposed of the matter when it lacked the votes to meet the two-thirds threshold for a conviction.
For Nixon, the process that led to his resignation took more than two years. The House Judiciary Committee and a Senate select committee undertook meticulous fact-finding, which uncovered evidence that Nixon had taped every conversation in the White House.
Three days after the Supreme Court ordered Nixon to turn over dozens of taped conversations, the House Judiciary Committee approved three articles of impeachment. Twelve days later, Nixon resigned.
Many advocates on both sides are too eager for a quick resolution of the investigation into Trump’s campaign. Moving too quickly not only risks a sloppy and incomplete investigation but also subjects the outcome to claims of either a whitewash or of overturning the results of an election held just months ago.
Special counsel Robert Mueller, a former FBI director, comes to the task with a reputation of impeccable integrity. If he conducts the investigation as expected, the public will likely have a great deal of confidence in the outcome, whatever it may be.
Impeachment is serious business. Any impeachment inquiry must be conducted thoroughly and preferably with bipartisan support.
Gerhardt is a professor of constitutional law at University of North Carolina Law School.