Bill Moyers Journal; 204; A Question of Impeachment

BILL MOYERS' JOURNAL

January 22, 1974

"A QUESTION OF IMPEACHMENT"

ANNOUNCER: The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.

BILL MOYERS: Impeachment arose in royal England where in 1691, the Solicitor General told Parliament that it ought to be like Goliath's sword, kept in the temple and not used but on great occasions.

In 1908 the noted British interpreter of America, James Bryce, compared impeachment to a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it and a large mark to aim at.

More recently impeachment has been likened to a nuclear weapon, too potent to be used. These stark images partly explain why, in our own history, impeachment has been so rarely used. But they obscure its chief purpose.

RAOUL BERGER: Impeachment has in America, in the United States under our Constitution, one purpose and one only: to cleanse an unfit man from office and make the office available for a person that can fill it properly.

MOYERS: For the first time in one hundred years, Americans are talking openly about impeaching a President. The House Judiciary Committee meeting in this spacious room is already studying impeachment proceedings against the Chief Executive, something that last happened in 1867.

Richard Nixon is fighting back in his own defense, bolstered by a national organization claiming a hundred thousand grass roots supporters.

The debate over impeachment has been confusing, waged in a thicket of ambiguous historical precedent, prickly partisanship and free-swinging conjecture.

During the next hour, we'll enter that briar patch in search of light on these questions. How complex is the machinery for bringing into place the heavy gun of impeachment? What kind of ammunition does it take to be fired? And is the 37th President of the United States its proper target?

I'm Bill Moyers.

This special edition of my Journal is titled: "A Question of Impeachment."

MAN: Hear ye. Hear ye. Hear ye. All persons are commanded to keep silence on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against Andrew Johnson, President of the United States.

MOYERS: The date

- March 30, 1868. With those words, the Sergeant-at-Arms of the Senate announced the only impeachment trial of a President in the history of the Republic.

Now, in Room 2141 of the Rayburn House Office Building, home of the Judiciary

Committee, the procedure of the impeaching of a President is once again under way. The Chairman of the Committee who sits here is a New Jersey Democrat named Peter Rodino; already his large, black leather chair is a hot seat.

PETER RODINO; I've had over three hundred thousand pieces of mail, letters, and telegrams.

MOYERS: Three hundred thousand?

RODINO: Three hundred thousand pieces of mail. From people all over the country. Who say: I'm a Republican but what's happening? We've got to do something.

And of course I think they look upon impeachment as something where the President is already found guilty but as you know, impeachment really means that if the House decides impeachable offenses have been committed and adopts Articles of Impeachment, then the matter is referred to the Senate for trial.

MOYERS: Pollsters are finding the same confusion about impeachment that is reflected in the Chairman's mail. A recent Roper Poll reported that forty-eight percent, almost half of all Americans don't understand what impeachment means.

Well, to dispense with myth number one: impeachment does not mean removing the President from office. It does not even mean he's guilty of anything. It does mean putting the President on trial in the Senate to determine his fitness to continue in office.

Impeachment is, well, it's a technical term, similar to indictment. It takes a majority vote of the House to impeach the President and it takes a two-thirds vote of the Senate to convict and remove him from office.

The leading Constitutional authority on impeachment in this country is Raoul Berger, Senior Fellow in American Legal History at Harvard Law School. He spent over three years researching and writing this book, not knowing when he began that it would become a major exhibit in a historic political and legal drama.

Professor Berger lives in Concord, Massachusetts, where two hundred years ago the first provincial Congress considered how to resist the tyrannies of George the Third. In this evocative setting I sought Professor Berger out to discuss impeachment. You'll be hearing from him often in the next hour.

First, a question on procedure.

Mr. Berger, the House votes impeachment. In a sense it accuses the President of certain offenses. It refers it to the Senate for the trial. How does the Senate render a verdict?

BERGER: It's conducted like a court. The Senate convenes itself as a court and proceeds with all the formality of a court. In the case of the President, the Chief Justice sits as the moderator, as the Presiding Officer. He's not entitled to a vote, mind you, but he's the moderator who makes the preliminary rulings on evidence and normally the rulings on evidence are very much like those in the court. It isn't everything that's admitted as new evidence. The impeachment trials here in America have been run pretty strictly.

SERGEANT:

Hear ye. Hear ye. Hear ye. All persons are commanded to keep silence.

MOYERS: The confrontation between the Congress and Andrew Johnson may well have been inevitable from the moment three years earlier when this Jacksonian Democrat from Tennessee succeeded the slain Abraham Lincoln.

The new President and Congress first locked horns over efforts by Southern diehards to nullify the 13th Amendment which outlawed slavery and involuntary servitude. Johnson was in a conciliatory mood toward the South. He seemed not at all bothered as thousands of Negroes ostensibly freed by Lincoln's Emancipation Proclamation were being returned to serfdom, through insidious tricks of Southern law.

To restore the rights of the newly freed slaves, Congress controlled by Northern Republican radicals passed the Civil Rights Act of 1866. The President vetoed it as "unconstitutional."

Andrew Johnson was an obstinate man. And his personal habits hardly fetching. When in the 1866 Congressional campaign, he cursed the radicals in the bawdy language of a frontiersman, they never forgave him.

But more importantly, the radicals believed his program of conciliation would leave the South totally unreconstructed, no different from the one they had gone to war to change. Soon their legislative feud threatened to paralyze Washington. Congress passed reconstruction laws; the President vetoed them. Fifteen times Congress over- turned his vetoes. Even when bills became the law of the land, the President refused fully to administer their provisions and often removed his subordinates who tried to implement them. Inexorably, Congress turned to talk of the ultimate weapon: impeachment.

The mile and a half between Capitol Hill and the President's House echoed to bellows of rage, frustration and righteousness.

CONGRESSMAN DAWES: The President does continue to do the most provoking things. If he isn't impeached, it won't be his fault.

MOYERS: The words of Congressman Henry L. Dawes. Across town the President:

JOHNSON: I have been traduced, I have been slandered, I have been maligned, I've been called Judas Iscariot and all that. Now my countrymen here tonight, it is easy to call a man Judas and cry out traitor. But when he's called upon to give arguments and facts he is very often found wanting.

MOYERS:

Congressman Dawes.

DAWES: If the Republic doesn't die under the combined effect of Johnson's treachery and our badness then it is immortal.

MOYERS: The President.

JOHNSON: We have seen Congress gradually encroach step after step upon Constitutional rights and violate day after day and month after month fundamental principles of government. We have seen a Congress that seemed to forget that there was a limit to the sphere and scope of legislation.

MOYERS:

Senator Charles Sumner of Massachusetts.

SUMNER: Andrew Johnson is the impersonation of tyrannical slave power. In him it lives again. Every sentiment, every conviction, every vow against slavery must now be directed against him. Pharaoh is at the bar of the Senate for judgment.

JOHNSON: Sir, I am right. I know I'm right and I'm damned if I don't adhere to it.

MOYERS:

Congressman Lewis Ross.

ROSS: We want peace and quiet. We want this disturbing element removed.

MOYERS: The first formal step toward removing this disturbing element came on January 7, 1867, when Ohio Congressman James Ashley whose great-grandson represents the same district in the current Congress rose to charge Andrew Johnson with high crimes and misdemeanors.

It took Ashley almost a year to get an impeachment resolution to the floor of the House and then it failed 108 to 57. For the moment, Andrew Johnson was safe, but not for very long, as we'll see in a few minutes.

MOYERS: The thirty-one words of Article II, Section 4 which give Congress the power to impeach were not lightly added to the Constitution. The men who gathered in Philadelphia in May 1787 to create a new government were not ready to forget why they had gone to war in the first place.

The Declaration of Independence had said it for them: "The history of the present King of Great Britain is a history of repeated injuries and usurpations...A Prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people."

Kings had been unaccountable, their persons sacred, their authority untouchable. The Founders wanted something else: a Chief Executive powerful enough to hold his own with the Congress and the Courts and yet not so powerful as to diminish them in the shadow of one-man rule. But they wondered was this enough? If some morning they awoke to discover the President had acquired too much power, or his conduct had become egregious, by what means could he be removed from office?

July 20, 1787. The question on the floor: Shall the Executive be removable on impeachments?

The arguments paraphrased from James Madison's Journal:

The delegate from Virginia, George Mason:

MASON: No point is of more importance than that the right of impeachment should be continued. Shall any man be above justice? Above all, shall that man be above it, who can commit the most extensive injustice?"

MOYERS: The delegate from Pennsylvania, Dr. Benjamin Franklin:

FRANKLIN: What was the practice before impeachment in cases where the Chief Magistrate rendered himself obnoxious? Why, recourse was had to assassination, in which he was not only deprived of his life, but of the opportunity of vindicating his character.

MOYERS: The delegate from Virginia, James Madison:

MADISON: It is indispensable that some provision should be made for defending the community against the incapacity, negligence or perfidy of the Chief Magistrate. Loss of capacity or corruption are more within the compass of probable events and either of them might be fatal to the Republic.

MOYERS: The delegate from North Carolina, Charles Pinckney:

PINCKNEY: I do not see the necessity of impeachment. By no means should they issue from the legislature who would hold them as a rod over the Executive and by that means effectively destroy his independence.

MOYERS:

The delegate from Massachusetts, Elbridge Gerry:

GERRY: A good magistrate will not fear impeachments; a bad one ought to be kept in fear of them.

MOYERS: The delegate from Pennsylvania, Gouverneur Morris:

MORRIS: My opinion, gentlemen, has been changed by the arguments of the discussion. Our Executive may betray his trust. He should be punished, not as a man, but as an officer and punished only by degradation from his office.

This magistrate is not the King, but the Prime Minister. The people are the King.

MAN: The question before this Assembly: Shall the Executive be removed on impeachment?

Is it aye? Aye? Nay? Aye.

MOYERS: The ayes had it. Into this brief document, containing principles the Founders held most vital to the new government went a 400-year-old procedure. A procedure born out of Parliament's long struggle to strip the Kings and their Ministers of absolute power and to expand the rights of the people.

BERGER: I want to remind you that the House of Commons had said in England I think it was 1679 that impeachment was the chief institution for the preservation of our liberty.

MOYERS: So our Founding Fathers took an instrument aimed at ministers and included the chief executive

.

BERGER: Not only included. The vast bulk of discourse about impeachment focused on the President exclusively. Against impeachment, the argument was virtually one, that this would be an invasion of his independence. Now that's important to bear in mind because it was overridden. And what this points to is that impeachment itself is an exception to the separation of powers. They knew that it might be a threat to the independence of the President. But when the chips were down, they concluded that it was necessary to be able to call the President to account.

MOYERS: But it would be lesser officials, not Presidents against whom the artillery of impeachment would be fired, and even then, sparingly.

In 1789, the House charged the first Senator from Tennessee, William Blount, with trying to incite a war to help England wrest control of Louisiana and Florida from Spain. The Senate acquitted him on the grounds that Senators were not civil officers and cannot be impeached.

President Jefferson's struggle for power with a Judiciary packed with his Federalist opponents, led in 1804 to the impeachment and conviction of district judge John Pickering. Pickering was stripped of office on charges of drunkenness, blasphemy and misconduct in a trial.

No doubt, Pickering was incompetent. He may well have been insane. But he also suffered the misfortune of belonging to the party no longer in power.

Jefferson the statesman could also be the vindictive partisan, and in 1805 he went after yet another Federalist, Associate Supreme Court Justice Samuel Chase. Chase was charged with "highly arbitrary, oppressive, and unjust conduct," but what really got him in trouble was that he simply disagreed with Jefferson and had the habit of saying so from the bench.

The House was in Jefferson's pocket. It impeached Chase. But the Senate acquitted him by only four votes. If Jefferson had succeeded, impeachment very nearly would have been established as a way to remove officials for partisan purposes.

But the Constitution clearly didn't intend impeachment to be a partisan guillotine. Following the Chase affair, Congress grew reluctant to impeach except for very clear cause.

In all, the House has voted to impeach only 12 officials, ten of them judges. Only four were convicted, including two judges in this century who were removed for conduct which raised very serious doubts about their integrity.

Although the Founders had intended impeachment primarily as a check on the Chief Executive, Congress has actually only moved once to impeach a President.

And that brings us back to the fate of Andrew Johnson.

Johnson had survived the first Senate attempt to convict him of charges brought by the House, but the radical Republicans wouldn't give up. Their next chance came early in 1868, precipitated by a piece of legislation called the Tenure of Office Act and by this man, Secretary of War Edwin M. Stanton.

BERGER: They passed a statute which was designed to freeze into office then Secretary of War Stanton. Now Stanton was really playing a double role and conveying all sorts of secrets of the Cabinet to the Senate enemies in the House, enemies of Johnson, so Johnson removed him in defiance of the statute.

Now Johnson had a point, a Constitutional point, and probably the better point. He said this statute's an unconstitutional invasion of my prerogatives. You remember the great debate in 1789 about the power of the President to remove a Cabinet Officer. And it had been settled that the President had that power, exclusive power; Madison spelled it out for us in the Federalist Papers.

MADISON: I think it absolutely necessary that the President should have the power of removing from office. It will make him, in a peculiar manner, responsible for their conduct and subject him to impeachment himself, if he neglects to superintend their conduct so as to check their excesses.

BERGER: And that remained the respected view for 88 years. Now comes the Senate and tries by statute to deprive the President of the power to remove his own Cabinet officer. And Johnson justifiably said, it's unconstitutional.

MOYERS: After Johnson's death, the Supreme Court ruled the Tenure of Office Act to be unconstitutional. And although he was vindicated in that particular quarrel with Congress, other scholars take a less charitable attitude toward him than Professor Berger. They challenge the once popular view that Johnson saved the Presidency. Instead, these more recent historians contend by demonstrating the appetite for one-man rule that would have destroyed the balance of power, he invited and deserved impeachment. In February, 1868 the President fired the disloyal Stanton over congressional and public protest and the confrontation came to a boil.

MAN: Mr. Johnson has said and done so much that is wild and wanton that people have ceased to judge of the probabilities of his action according to any received standard of right or duty.

MOYERS: Now Congress acted swiftly. On February 24th, voting along strict party

the House decided 126 to 47 to impeach a lines Republicans for Democrats against the President who had only one year left to serve.

MAN: Hear ye, hear ye, hear ye. All persons are commanded

MOYERS: The actual proceedings in the trial of Andrew Johnson opened in the

Senate on March 30, 1868 and lasted six weeks. Two main charges were laid against the President: that he had violated the Tenure of Office Act by replacing Stanton and that he had failed to carry out the Reconstruction laws. But the deeper issues quickly emerged: What is the proper balance of power between the Congress and the Executive? And what is an impeachable offense?

For the House prosecutors, Congressman George S. Boutwell:

BOUTWELL: If his will or opinion is substituted for the action of the lawmaking power, the government is no longer a government of law, but the government of one man.

MOYERS: For the President, Senator Thomas A.R. Nelson:

NELSON: The President of the United States, having the executive power invested in him by the Constitution has the right to exercise his best judgment and if he exercises that judgment honestly and faithfully, not from corrupt motives, then his action cannot be reviewed by Congress or by any other tribunal, other than the tribunal of the people in the Presidential election.

MOYERS: For the House, Congressman Ben Butler:

BUTLER: An impeachable offense is one subversive of some fundamental or essential principle of government or highly prejudicial to the public interest. And this may consist of a violation of the Constitution, of law, of an official oath, or of duty by act committed or omitted, or, without violating a positive law by the abuse of discretionary powers from improper motives, or for any improper purpose.

MOYERS: In the end Congress could not define an impeachable offense with clarity and the Johnson trial was decided as much for political as legal reasons. Since Lincoln's assassination the country had been without a Vice President. If Johnson were convicted the new President would be Ohio's Ben Wade, President Pro-Tem of the Senate. His fiery radicalism frightened Conservative Senators who were unhappy with Johnson but who also realized a new election was only a year away. As President, Wade would be a threat to the White House chances of Ulysses S. Grant, a favorite of these men.

You can hear whispers of the same argument in these corridors today, some Democrats seem to prefer a captive, crippled Nixon to a fresh, unblemished Gerald Ford who, suddenly catapulted into the White House, might turn out to be as surprisingly successful in 1976 as Harry Truman was in 1948.

A second political consideration helped to save Andrew Johnson. To put it simply: he got the message: The prospect of being the first President to be removed from office shook even his bull-headed obstinance. Word went out from the White House that the President would be a good boy.

The Chicago Tribune in those days reported that during the impeachment trial, he was actually a changed person, permitting reconstruction to go forward in the South, while the debate over his fate raged in Congress. In Washington the sense of crisis slackened even as the trial headed for a verdict.

In May the Senate voted on the two major articles of impeachment; in each case, 35 Senators voted to convict, 19 to acquit. By the margin of one vote, the two-thirds required for an impeachment conviction could not be met. On Tuesday, May 26, 1868, the Senate "ordered and adjudged that the said Andrew Johnson, President of the United States, be acquitted of the charges." The trial of Andrew Johnson was over.

What was decided?

Well, the impeachment of Andrew Johnson had some curiously paradoxical results. By forcing the President to back down it strengthened Congress for a long time to come, for good or ill. But in failing of conviction it reduced the threat of Presidential removal to a mere scarecrow. Enough people were horrified at the abuses heaped upon their President that the very thought of impeaching another Chief Executive became anathema. The sword of Goliath, as it were, returned to its sheath, there to grow rusty.

For our purposes, the outcome also enforced the belief that Presidents could only be impeached for an exact violation of law. One hundred years after the acquittal of Andrew Johnson another President faces the possibility of impeachment. There are some very large differences between circumstances then and now. The allegations against Richard Nixon, unlike the Johnson affair, chiefly concern criminality. Accused as he was of being a drunkard, Andrew Johnson never felt constrained to deny he was a crook. But though the circumstances and charges be different, one hundred years later, the crux of impeachment remains the question: what is an impeachable offense?

The Constitution says: treason, bribery or other high crimes and misdemeanors. Treason and bribery are generally well-understood terms. High crimes and misdemeanors is another matter.

But Professor Berger says high crimes and misdemeanors is a term the men who wrote this document understood as precisely as they did treason and bribery.

BERGER: I suggest to you that when we use high crimes and misdemeanors, which the Founders knew had a limited technical meaning, we look for that meaning to the English law. And there we know, we have certain, by the way, noncriminal offenses in our terms subversion of the Constitution, abuse of trust, negligent conduct in office, encroachment on the prerogatives of the Parliament, corruption, any number of other things so we've got the precedence of English law which has filled in so many of the interstices of the Constitution for us.

-

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You see, they were holding the President to a high standard of conduct, to a faithfulness to his office, not to abuse his powers. It's an abuse of power that is the great impeachable sin.

MOYERS: Should partisan passions sweep a President out of office?

BERGER: They shouldn't. But impeachment is inescapably partisan. We see it, even in the preliminary steps in the way the House Committee divided on purely political grounds. And let me say a word in behalf of that. It's part of the genius of the English democracy and our own that there is a party in opposition, you know. The English have a grand phrase "His Majesty's Loyal Opposition." No party ever investigates itself. In fact, parties use heroic measures to block, to stifle investigation, and investigations have to be almost over the bodies of the incumbents. So time and again, as in Teapot Dome, we've had to say, thank God that there is a party in opposition. It's political, but you wouldn't get the job done otherwise.

MOYERS: There is considerable support for Professor Berger's argument that the phrase "high crimes and misdemeanors" is open-ended, to be defined in a case-by-case application by the Congress. In 1970, for example, several Republicans and Southern Democrats tried to impeach Supreme Court Justice William Douglas. The effort was supported by the Nixon White House and led by the man President Nixon eventually chose as his new Vice President - Gerald Ford.

In those days Congressman Ford had this to say about what constitutes an impeachable offense.

VICE PRESIDENT FORD: An impeachable offense is whatever a majority of the House

of Representatives considers to be impeachable at a given moment in history. Convictions

result from whatever offense or offenses two-thirds of the other body, the Senate, considers to be sufficiently serious to require removal of the accused from office.

MOYERS: Now that he's on the other end of the seesaw, Vice President Ford takes another view of what constitutes an impeachable offense. He's closer to the school of thought that interprets high crimes and misdemeanors in the familiar terms of criminal law. No less an authority than Blackstone wrote:

Impeachment is a prosecution of the already known and established law. Under this theory, a President can be impeached only for an indictable crime, a crime for which he could be convicted in a regular court of law.

So the phrase "high crimes and misdemeanors" remains a matter of controversy, to be decided in the one court of last resort, provided for impeachment by the Constitution, the Congress of the United States.

The President's political peers will decide it as they wrestle with the question: Has the conduct of the 37th President made him a fit target for impeachment?

In the past several months, the pattern of wholesale misconduct and lawlessness by the government has emerged, startling in its scope and frightening in the implications of where it might have run had it gone undetected. So far, eighteen men have been indicted for, or pleaded guilty to, criminal offenses related to the Watergate scandals. All were in the service of President Nixon and some of them were his closest advisors and assistants.

PRESIDENT NIXON: The easiest course would be for me to blame those to whom I delegated the responsibility to run the campaign; but that would be a cowardly thing to do. I will not place the blame on subordinates, on people whose zeal exceeded their judgment, and who may have done wrong in a cause they deeply believe to be right.

In any organization, the man at the top must bear the responsibility. That responsibility therefore belongs here. In this office. I accept it.

BERGER: If the President shall neglect to supervise the excesses of his subordinates, that would be an impeachable offense.

MOYERS: Their excesses could be his responsibility?

BERGER: If the President shall neglect to supervise it, if he neglects to supervise the excesses of his subordinates, they commit excesses and he's been neglectful, hasn't supervised it. Now, let's test that against some of the recent utterances of President Nixon. You're talking about some of the practices going on; he said they were unethical and illegal. I take responsibility for them, he said; perhaps I wasn't vigilant enough, which means - I was neglectful.

Now, responsibility we can't talk about in criminal terms. In very rare terms, if at all, is a principal liable for the criminal acts of his subordinates. But civil liability is something else again. To give you a homely illustration. If you have a supermarket and you hire a notorious drunk, give him your truck and he runs somebody over, you've placed that instrument in his hands, he's going about the performance of duties you've delegated to him and you're responsible.

MOYERS: The men who debated Presidential responsibilities in Philadelphia resorted to less homely language when they approved the final draft of the Constitution. Article II, Section 4 states plainly: "the President shall take care that the laws have been faithfully executed."

Bills of particular circulating in Congress allege in one way or another that President Nixon has failed the oath he took to uphold the laws. They asked questions like these:

Is the President impeachable for tapping the telephones of several government officials and of at least four newsmen without obtaining a court order?

Is he impeachable for White House orders to the Internal Revenue Service to harass with tax audits and investigations individuals on the White House enemies list?

Is he impeachable for the domestic intelligence plan, authorizing illegal burglary, wiretapping, bugging and the opening of mail? For creating a secret White House unit which broke into a doctor's office in Los Angeles? For secretly recording office and telephone conversations without the knowledge of those he was talking to, in apparent violation of Federal Communications Commission's rules?

Is he impeachable for conducting the secret bombing of neutral Cambodia and for deliberately concealing this action from the rest of the government and from the American people? For usurping Congressional power over the purse by impounding approximately forty billion dollars of appropriated funds? For attempting to bribe the Judge in the Ellsberg trial with a tentative offer of the FBI directorship?

Is he impeachable for pressuring the Justice Department into an antitrust ruling favorable to ITT in return for a large contribution? For increasing price supports of dairy products, in return for a contribution from dairy cooperatives?

President Nixon accepts responsibility for those who worked for him, whose zeal, he says, led them to do wrong. But the impeachment proceedings will probe more deeply. Did the President also try to prevent knowledge of their activities from coming to light? Was he involved, in other words, in a coverup?

L. Patrick Gray and White House Counsel John Dean say they warned the President of sinister doings within the Administration. Did he ignore them? The record of one White House tape indicates that shortly after the Watergate burglary occurred, the President discussed with H.R. Haldeman not how it happened, but how they could mount a public relations counteroffensive to divert attention from Watergate.

Documents recently released by the White House suggest top officials of the Administration lied about such matters as the ITT and milk affairs. By the White House's own account, the President must have known long ago that these top officials were not telling the truth. Why did he wait until now to correct the record?

Then there's the question of the tapes. First the President refused to make them available. When he changed his mind two tapes were simply missing. And on one of the available tapes eighteen minutes of a crucial conversation between the President and Mr. Haldeman turned out to be erased.

Was all this a series of coincidental, technological failures or a deliberate effort to first withhold, then destroy evidence? These are the questions the men and women meeting in this room will probe.

BERGER: We have had, on the whole, nothing comparable to the conduct in office of the Nixon administration. Bear in mind, when we talk about a President like Ulysses Grant, inept, bumbling, surrounded by corruptionists who lined their pockets, but himself never charged with participation; perhaps not even with knowledge. Harding, of the same stripe, surrounded by a bunch of boodlers, but himself not a corruptionist.

MOYERS: Are you saying that in your judgment, in 200 years of our history as a Republic there haven't been offenses in office like those of this Administration?

BERGER: I would say, yes, there has never been. Bear in mind you've had corruption by Cabinet members, trying to corrupt the electoral process which goes. to the very vitals of a democracy. Never.

MOYERS: But so far the charges against the President have simply been that - charges, rumors.

BERGER: I wouldn't, for a moment, intimate that I accept as proven any of the charges. Not at all. And I would urge the American people on that score to withhold final judgment.

MOYERS: The President's staunchest defenders not only presume his innocence, they claim the call to impeach him is irresponsible and vindictive. Several months ago some of those supporters came together to form an organization called The Committee for Fairness to the Presidency. The group has sponsored a series of advertisements in newspapers around the country, calling on Americans to rally behind Mr. Nixon. The ads generally attack the media, claiming that newspapers, radio, and television are out to get the President. The ads are financed by contributions and the committee, which is run out of a small suite of offices in Providence, Rhode Island now claims over a hundred thousand members.

Rabbi Baruch Korff to President Nixon recently met with the group's founder to thank the Committee for its support. In Providence, Rabbi Korff talked with Martin Clancy about the President and about impeachment.

RABBI KORFF: There is not a single, impeachable offense committed by the President. But, I will say this much to you, Martin, because of this collusion and pressure by the media, that there will be a partisan bill reported by the House Judiciary Committee and it will tear the country apart.

MARTIN CLANCY: If you were a member of the House Judiciary Committee, what kind of evidence would it take for you to recommend a vote for impeachment?

KORFF: Hard evidence. Very hard evidence. It has to be an overwhelming situation. Where the President commits an atrocity that would be so fatal to the welfare of this nation that to even pass the thought of impeachment. What we are doing now, we are promoting impeachment by imposing it. If the House is to sit as a grand jury, by what audacity and temerity do we even talk about it, matters which are before the House. But we talk about them because the media so infiltrated the House of Representatives appealing to the Republicans, better desert your President, desert your captain, go for impeachment at once and save your Party. What did they think, the Republicans are fools? If the Republicans would desert for political expediency, their President, they will write their own doomsday, they will never recover. Their own solution and their recovery lies in standing behind the President. The President did not steal. The President did not commit adultery. The President did not bribe. The President executed his oath of office as I see it and it's within the periphery, Constitutional periphery of his oath of office. It includes certain clandestine activities; well, what President and what Chief Executive in the past has not thus engaged?

MOYERS: That same argument has been advanced by others who are skeptical of impeachment. In a recent article in The New York Times, author Irving Brandt who wrote a book called Impeachment: Trials and Errors summed up his view this way: "Of the President's conduct of the Indochina War- If he is guilty as charged, too many members of Congress share his guilt; too large a proportion of the American people support his conduct.

But these arguments have failed to still the cries for impeachment and for months now, several organizations and individuals have been compiling unofficial lists. of articles of impeachment against Richard Nixon.

The largest organization pressing for impeachment is the AFL-CIO. On October 22, its representatives called for the President to resign or be impeached. The point man for the organization's campaign is its legislative director, Andrew Biemiller, a former Congressman whom I know from personal experience to be one of the most formidable persuaders on Capitol Hill. A man who can twist arms without so much as lifting a finger.

Isn't there something not quite equitable here? Here's the AFL-CIO with millions of members, lots of money, and the ultimate weapon of Andy Biemiller calling for the impeachment of Richard Nixon.

ANDREW BIEMILLER: You're very kind with that remark. The whole power of the White House which you should know a good deal about, Bill, is of course being thrown into this thing. Now, I'll grant you the power of the White House has been impaired by what's been going on there, but nevertheless, I don't discount the power of the White House. He's got an organization going and if the Republican Party isn't going to support him, then he's surely going out.

When we say impeach him, we're not automatically saying he's guilty. We think he is, but all impeachment means, is, he'll have his day in court and if there isn't an impeachment, we think the American people for the next three years will be wondering what has happened to their government and this is a bad state of affairs for our country to be in.

MOYERS: How can you be sure that this isn't just a political vendetta against a President labor doesn't like?

BIEMILLER: Let's get it straight. We would not expect any great fundamental changes if he went out of office and Jerry Ford went in. We respect Jerry Ford as an honest American politician. We think he has a record that is honorable right down to the last comma that you can find in writing about it. But I don't think he'd make any great changes in the basic policies.

MOYERS: He hasn't been all that much a friend of labor, has he?

BIEMILLER: No. Not at all.

MOYERS: And so, you're willing to take a Ford who's not been a friend of labor.

BIEMILLER: We'd rather have an honest President.

MOYERS: Charges against the President and the questions about his conduct have become so numerous that even many of his sympathizers now believe impeachment procedures to be the only way to clear the air.

That's also the opinion of the members of one of the most respected nonpartisan organizations in the country, the League of Women Voters. In Washington, I talked with the League's President Lucy Benson.

There's an interesting line in one of your communications to your members which says, in short, impeachment is not a process to be feared. What do you mean by that?

LUCY BENSON: Well, there are some people who think that people in general are afraid of impeachment. I don't think people are afraid of impeachment but we believe that if we have an opportunity to talk more about just what impeachment is, how it works, who does what, that people will understand what's going on and this will be all to the good.

MOYERS: Aren't you fearful that this process, whether it's acquittal or guilty, will be divisive? It will be so disruptive in the country as to be counterproductive?

BENSON: Well, I don't know. Why would it be disruptive? Why would it be divisive? I don't see why it would. It seems to me that we have had a tremendous amount of disruption in the past months, well over a year now. I can't think of anything more disruptive than for people in a democratic, representative form of government to find that there have been misdemeanors and, in fact, criminal activities in high places. Nobody disputes that. That has taken place. It has not been established beyond question just exactly who is responsible for what has taken place. But it's the only way to clear that up.

MOYERS: There are 38 members of this Committee. The next step toward impeachment is up to them. It was impossible of course to get all of them together at once. But in the Committee's legal library the other day, I sampled opinions among four of them.

As a member of this Committee, how do you plan to work the next few weeks?

BARBARA JORDAN: What we are going to try to do is to assimilate the credible evidence and make a judgment. A judgment about what? Whether probable cause exists which would support articles of impeachment against the President of the United States. Probable cause is certainly a different standard than one of guilt or innocence.

MOYERS: Probable cause of what?

CHARLES WIGGINS: impeachable misconduct. Probable cause to believe that the President is guilty of

BARBARA JORDAN: When you say probable cause of guilt, I do not understand that as the standard which I will apply. My judgment would be, whether as a reasonable man, the man on the streets, whether I could look at that and say, not necessarily, he must be guilty, he must be innocent, but whether I could look at that and say there is enough evidence that raises a suspicion, a question in my mind that there may be something there which a trial in the Senate could bring out as a determination of whether there is guilt or innocence. I don't think that I'm saying the same thing.

CHARLES WIGGINS: We're going to get into an argument at this point because I most certainly disagree, and Bill, I'll let you take her on

WILLIAM COHEN: To raise a suspicion, I don't think is the equivalent of probable cause. I think that's an inherent contradiction in terms of

HARRY SMITH: The thing we're talking about, and the thing on which there is no unanimity of opinion so far, is the Constitution defines an impeachable offense as bribery, treason, high crimes and misdemeanors.

MOYERS: Have you reached a definition in your own mind of these terms?

HARRY SMITH: No, I -

MOYERS: High crimes and misdemeanors?

HARRY SMITH: I have not.

CHARLES WIGGINS: Nor has the Committee.

HARRY SMITH: Nor has the Committee.

MOYERS: The most common term I've heard as I talked to critics of the President in the last few weeks is that we want to investigate whether or not he has subverted the Constitution.

CHARLES WIGGINS: It sounds sinister, I'll say that. And one would suspect that

it ought to be impeachable – anyone who subverts the Constitution. But that's much too vague a charge to stand up as a count of a specification in an impeachment proceeding in my opinion. The President can be characterized as having subverted the Constitution, but the counts of the indictment or the impeachment, as it were, are going to have to be much more specific than that and I say so out of my sense of what due process is all about.

A person charged is entitled to know specifically what he's charged, in order that he may defend himself. And a charge of subversion of the Constitution would not meet that due process test.

BARBARA JORDAN: It's this kind of a catch-all phrase, I guess for people who don't really want to wrestle with the kinds of offenses you're talking about.

BARBARA JORDAN: But we're going to have to wrestle, we're going to have to do that.

CHARLES WIGGINS: We will.

MOYERS: Have you been hearing from your constituents on this?

BARBARA JORDAN: My constituents, yes, I've been hearing from them, but all they say is

impeach and impeach now. And my difficulty now is in trying to educate them. People are unfamiliar with the process as you stated before. We cannot impeach on the basis of what we read on the front pages or the editorial pages of the newspapers.

WILLIAM COHEN: I'd only add to that, we cannot impeach on the basis of the volume of the mail that we receive calling for impeachment. And I would say that impeachment itself generates, or is capable of generating, such strong emotions on both sides of the spectrum.

I think there is also that group of people who are simply at a loss for words at this point who feel somehow that the pride and the promise of America has been diminished as a result of this entire event.

MOYERS: Do you think the country will be better off one way or the other after this is done? Will the process of considering impeachment be a way of clearing the air and then as Senator Aiken said, "either impeach or get off his back." Do you think this is both a necessary and a useful process?

HARRY SMITH: I think it's a necessary process. Whether it's useful or not, I think will depend a great deal on how our committee operates and I would think probably it will be useful.

BARBARA JORDAN: I would just add Henry, in my judgment, in response to your question, Bill, it's the only way to clear the air.

CHARLES WIGGINS: Let me observe that we're going to have a very close vote. In the Judiciary Committee and perhaps on the floor. That isn't going to clear the air. The issue's going to be with us, as far as I know, for an awfully long time.

HARRY SMITH: But I think, Chuck, that it might help the people of this country, maybe not some elements of the press and so forth but I think what this Committee does and what the House does may be very helpful to the people of the country.

MOYERS: Any of you wish you'd been appointed to the House Foreign Affairs Committee?

CHARLES WIGGINS: No, this is an exciting time.

BARBARA JORDAN: But I want to hasten to add that I, as a Democrat, take no joy and no comfort in the prospect of having to vote on impeachment of the President of the United States. That is not something any sane, rational person who cares about the Republic and how it stands could take joy and comfort in doing.

HARRY SMITH: Well said, Barbara.

MOYERS: One final question, do you feel qualified to make the historic judgment that you're about to be called on to make?

HARRY SMITH: I feel qualified. As any American citizen should feel qualified.

BARBARA JORDAN: Yes.

CHARLES WIGGINS: I have no doubt at all.

MOYERS: Good luck.

HARRY SMITH: Thank you very much. I think perhaps we may need it.

MOYERS: It will take more than luck for this Committee successfully to maneuver its course over the next few weeks. It'll take facts, evidence and no little guts. There are people powerful, and ordinary citizens as well, who believe that whether the President is guilty or not,

impeachment is too drastic a step to take. They argue that it will only produce trauma, turmoil, dissension. That it will paralyze the government and weaken us in the world.

Mr. Nixon said as much when he warned that if you cut the legs off the President, America is going to lose.

If we believe that argument, we will have surrendered to the myth that the President and the country are one and the same. We will have tied our survival as a Republic to one man's survival in office, whatever his conduct and standards. And the millennia of striving by Western man to discriminate between the permanent interest of the nation and the temporary interest of the ruler will have suffered a setback.

As for paralyzing the government, and producing trauma and dissension, well, more bills were introduced in Congress while Andrew Johnson was being impeached than during the previous session. And it's hard to see how the nation's morale could be more surly and bewildered than it is today. We need, in fact, for the doubts to be cleared up. We need for the suspicions to be either confirmed or dispelled. For, in one sense, the President has impeached himself in the court of public opinion.

MARTIN CLANCY: You've been the keeper of the public pulse of Presidential approval since 1935.

GEORGE GALLUP: That's right.

CLANCY: In all of those years, have you ever seen an approval rating of a President drop so far so fast?

GALLUP: No. Nixon's rating, his approval rating has dropped faster, more precipitous than any one of the Presidents in this period. The approval rating is really a confidence rating and Nixon's clearly lost the confidence of the American people. So if we had a parliamentary form of government, he would be out of office. But, of course, we have a four-year term.

CLANCY: mortal men? Have Americans traditionally regarded Presidents as more than mere

GALLUP: Yes. The Presidents they've always put on a pedestal. They've always had a very high regard for the President and they expect him to be sort of a paragon of virtue. They expect him to be a leader in every sense of the word. They expect him to have all of the good old Puritan virtues and when things go wrong, they seldom blame the President. They always blame the people around the President and this was true in the time of Roosevelt. The situation's somewhat different with Nixon because the majority of the people in the country think that he was involved, at least in a coverup of Watergate.

MOYERS: This document, the Constitution of the United States of America and specifically, the Bill of Rights, affords to each citizen in this country the right to any opinion he wishes to hold of a President. Although I grew up in Populist East Texas where Republicans were as scarce as nudists and atheists, and in fact, served in two Democratic administrations, I was impressed by Mr. Nixon's first days in the White House. It's hard to have served there and not wished the incumbent, whatever his Party, anything but well.

I had been, in particular, impressed with a speech about the Presidency Mr. Nixon had made during the campaign in 1968, where he acknowledged in that speech that while government is a process of legal agreements, it also requires a moral consensus.

PRESIDENT NIXON: Theodore Roosevelt called the Presidency a bully pulpit. Franklin Roosevelt called it pre-eminently a place of moral leadership. And surely, one of a President's greatest resources is the moral authority of his office. It's time we restored that authority. It's time we used it once again to its fullest potential, to rally the people, to define those moral imperatives which are the cement of a civilized society.

MOYERS: But as time went on, Richard Nixon made it hard to believe, and following a long train of unblushing deceptions, incredible contradictions, and admittedly criminal acts, done in his behalf by the men he chose to serve him, those words today seem hollow. I, for one, am convinced that Mr. Nixon not only has failed to provide the moral leadership he pledged in that speech but that he has fostered a lawless extension of power throughout this government and that he has systematically robbed the country of its ability and willingness to trust the President.

But does that make him impeachable?

Well, when a President's capacity to remain in office is in doubt, the Constitution wisely does not provide for that issue to be resolved by opinion polls, television commentaries or newspaper editorials. It provides one remedy: impeachment. And it places that remedy into the hands of men and women who, like the President, have taken an oath to uphold the laws and to defend the Constitution.

EDMUND BURKE: "It is by this tribunal that statesmen who use their powers are accursed by statesmen and tried by statesmen, not upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of state morality.

MOYERS: Now it's for Congress to decide whether Richard Nixon has upheld and enlarged the solid principles of state morality or whether he has, in fact, abused his public trust. By pressing forward, judging fairly the evidence for and against impeachment and rendering a decision, Congress will have faithfully discharged its duty. Then we can accept the verdict of due process, whatever it is, and whatever our own personal, political persuasion. And we can get on with the task, now almost two hundred years old, of trying to prove that democratic self-government in this country can and will work.

I'm Bill Moyers.

Good night.