Watergate Lessons for Trump’s Era
With all the calls for an independent prosecutor for President Trump after his firing of the FBI’s James Comey, why not move the investigation to the House Judiciary Committee? It could get right down to whether the president has done anything worthy of impeachment.
It’s not that I think the president is guilty. It’s just the only properly constitutional way to investigate this, or any, president. No one has adduced any evidence of wrongdoing by Mr. Trump. I’d like to see him cleared. But if he is to be investigated for crimes or misdemeanors, the House, with its impeachment authority, is the venue.
The Democrats are outraged at the thought that Mr. Trump, though he denies it, may have fired the director because the FBI boss was investigating the president. But if Mr. Comey was investigating the president, that would be grounds to take the investigation away from him (or simply to fire him). If the president is the target, the matter belongs to the House.
Like others in my generation, I came to this view through the experience of Watergate, when President Nixon fired special prosecutor Archibald Cox, and Whitewater, when President Clinton was pursued by independent counsel Kenneth Starr.
Cox was brought in after Attorney General Elliot Richardson —ignoring the separation of powers—made a deal with Congress to diminish the president’s authority. The deal was that Cox would be dismissed only for cause. Cox subpoenaed Nixon and refused a compromise. The president then ordered the attorney general to fire him. An insubordinate Richardson and his deputy refused. It took Solicitor General Robert Bork to do the constitutional deed.
Eventually, the Judiciary Committee hired staff and went after Nixon, voting out three articles of impeachment (obstruction, abuse of power, and contempt of Congress). Before the House could decide whether to press the charges, Nixon quit.
The Ethics in Government Act of 1978 enabled the unleashing of a prosecutor almost completely beyond the reach of the executive branch. It was used to harry the Reagan administration. The Supreme Court, in Morrison v. Olson (1988), rejected a constitutional challenge. In a lone dissent, Justice Antonin Scalia warned that an independent prosecutor could affect the “boldness of the president.” While issues often come before the court “clad in sheep’s clothing,” he wrote, “this wolf comes as a wolf.”
Democrats finally recognized the wolf in the form of Mr. Starr, who was put up against President Clinton. He sent his findings to the Judiciary Committee, which recommended four counts of impeachment, of which the full House affirmed two (perjury and obstruction). Mr. Clinton was acquitted by a Republican Senate. The GOP would have needed help from the Democrats to reach the constitutionally required supermajority of 67 votes for guilty.
It was a bitter disappointment to those who’d fought for an investigation. The one salve was the almost universal bipartisan conclusion that independent counsels led to abuse. Within months, Congress allowed the independent-counsel law to expire.
The dangers Scalia warned about in 1988 have rarely loomed larger than today, when a new president confronts a global terrorist war. In the middle of this existential struggle, who would benefit were Mr. Trump to be “dragged from pillar to post”?
That’s a phrase Thomas Jefferson used when warning against subjecting presidents to the common courts, as Mr. Trump’s aides, cabinet officials, family, and onetime business associates will be if the current calls for an “independent” investigation are heeded.
The right adjective for what is needed is “constitutional.” Moving the probe to the House Judiciary Committee certainly has risks. But no one could say it lacks the power to put this controversy to bed, one way or another, under the quilt of the Constitution.
Mr. Lipsky is editor of the New York Sun.
Appeared in the May. 12, 2017, print edition as ‘Watergate Lessons For Trump.’