Downside of Watergate: We found crimes. Now people think that’s what it takes to impeach. – USA TODAY

Posted: November 6, 2019 at 11:41 am


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David M. Dorsen, Opinion contributor Published 5:00 a.m. ET Nov. 1, 2019 | Updated 11:09 a.m. ET Nov. 1, 2019

Impeaching a U.S. president might not be the be-all-end-allfor their career. We explain why this is the case. Just the FAQs, USA TODAY

Don't trivialize the Founders. They didn't want presidents impeached for embezzlement but not for selling us out to foreign powers for personal gain.

When House Republicans voted unanimously against the impeachment resolution setting rules for investigating President Donald Trump, they reflected not just blind partisanship but also a misunderstanding, perhaps willful, of what constitutes grounds for impeachment. And Watergate is partly to blame for that.

The 1970s Watergate investigators weresuccessful in ferreting out wrongdoing, including the massive obstruction of justice that emanated from the highest levels of the executive branch of our government.The news media initially uncovered facts demonstrating that those responsible for the Watergate burglary and its cover-up went far beyond the arrested burglars. The Senate Watergate Committee presented a comprehensive picture to the public that has withstood the test of time. The special prosecutor succeeded in getting the Supreme Court to order President Richard Nixon to produce all his tape recordings (including the Smoking Gun Tape of June 23, 1972). The House JudiciaryCommittee forcedNixon to resign. Andthe special prosecutor convicted Nixons top aides.

So what is Watergates negative legacy?

Because the investigations were so thorough and the wrongdoing, which included bribery as well asobstruction of justice, so severe, some of Trumps supporters are arguing that a crime is essential to an impeachment and conviction, and that abuse of the presidents constitutional powers thatdoes not constitutecrimedoes not rise to the level of an impeachable offense.After all, White House counsel John Dean famously talkedto Nixon about paying $1 million (in 1973 dollars) to continue to buy silence from the Watergate burglars evidence of a crimeright there.

But the premise is false.

Bronze sculptures of the signers of the Constitution at the National Constitution Center in Philadelphia in 2003.(Photo: Eileen Blass/USA TODAY)

Asassistant chief counsel to the Senate Watergate Committee, I was part of the investigation. Our success at demonstrating the criminality of Nixons actions created a sense that criminality is required. Yet it is absolutely clear that criminal conduct is not a requirement and that abuse of presidential power is sufficient.

The constitutional standard is high crimes and misdemeanors, which is a term of art that the Founders borrowed from England and is satisfied by proof of a serious abuse of power.Sacrificing the national interest for personal gain or aggrandizement satisfies the constitutional standard, especially when it is accompanied by lies, threatsand other misconduct.The term is archaic, but its meaning is clear.

Originally, the framers inserted into the draft constitution terms like malpractice or neglect of duty.They changed the language to require more serious conduct, but did not change the nature of the impeachable offense. Itwas always connected to the official duties of the president, not to crimes committed by ordinary citizens.The framers wanted a government that would not kowtow to the powerful European powers.The very survival of the republic was at stake.

To restrict the constitutional language to ordinary crimes demeans the work of our Founders, who sought to create a virtuous nation built on democratic principles.By saying that a president can be impeached for a run-of-the-mill embezzlement while going scot-free for selling out the country to a foreign power for personal gain, defenders of Trump are trivializing the founding generation.

David M. Dorsen, formerlyassistant chief counsel of the Senate Watergate Committee and an assistant U.S. attorney in the Southern District of New York, is the author of"The Unexpected Scalia: A Conservative Justices Liberal Opinions" and, most recently, "Moses v. Trump, a contemporary novel." Follow him on Twitter:@DavidDorsen

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Downside of Watergate: We found crimes. Now people think that's what it takes to impeach. - USA TODAY

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