Opinion: It’s been 50 years since Nixon resigned. Impeachment hasn’t held up well

Editor’s Note: Michael Gerhardt teaches constitutional law at the University of North Carolina at Chapel Hill. He has written and consulted extensively on impeachment and is the author of the forthcoming book, “The Law of Presidential Impeachment.” The opinions expressed in this commentary are his own. View more opinion on CNN.

The past 50 years have not been good for presidential impeachment. In 1974, the Constitution worked as it should have when President Richard Nixon resigned on the brink of certain impeachment in the US House of Representatives and conviction in the Senate. With substantial proof of Nixon’s misconduct assembled by the House, Senate and special prosecutor, the public overwhelmingly agreed with removing Nixon from office.

In contrast, Republicans last Wednesday voted to authorize an impeachment inquiry into President Joe Biden based on unspecified, undemonstrated misconduct. There is no evidence, much less any established public consensus, that impeachment is warranted or desirable. Instead, this process is transparently and overwhelmingly partisan.

Former President Donald Trump had asked House Republicans to impeach Biden as payback for his own two impeachments, which Trump dismissed as partisan witch hunts. House Democrats, for their part, have denounced the GOP efforts as designed to hurt Biden’s reelection chances and distract from Trump’s legal woes, including indictments for more than 90 felonies (Trump denies any wrongdoing).

The path impeachment has traveled from its proper use in Nixon’s case to partisan politics by other means is not simply the consequence of hyperpartisanship. In my judgment, it is also a result of increased tribalism and, as I explain in my forthcoming book, the experience presidents and members of Congress have had with the impeachment process.

After Nixon, the presidents stamped with impeachment – Bill Clinton and Donald Trump – felt no need to resign as the momentum for impeachment built after their revelations of misconduct. Each felt certain that not only would their support within their party hold but also that senators from their respective parties would not vote to convict them and thus ensure their acquittals after their trials.

The process has also changed. Investigations of Nixon’s misconduct via the Watergate hearings were conducted by bipartisan committees in the House and the Senate for months before the House authorized a formal impeachment inquiry. Clinton’s impeachment inquiry followed the fact-finding undertaken by then-independent counsel Ken Starr’s office, while Trump’s followed intensive fact-finding by the House Intelligence Committee. Since retaking control of the House in January, Republicans have spent months investigating Hunter Biden but have not yet found any credible evidence of wrongdoing by his father.

That hasn’t kept GOP House Speaker Mike Johnson from alleging that the “evidence” of Joe Biden’s corruption is “the worst in the history of the country.” Republicans differ on the crimes they think the inquiry is needed to explore, with some claiming influence-peddling and bribery and others having difficulty specifying the misconduct that needs investigating. Yet in the one Republican-led House hearing that was called an impeachment inquiry, in September, the Republicans’ own constitutional expert said he did not believe “the current evidence would support impeachment.”

While Johnson said last Tuesday that he will not “prejudge” the “outcome” of the impeachment inquiry, his credibility has been shattered.

In contrast, the Watergate hearings saw members of Congress place principle over party. Republican and Democratic staffers worked together on committee reports and investigations. Shortly before Nixon’s resignation, Senate Republican leader Barry Goldwater told Nixon only a small number of Republicans would vote to acquit him.

Today, House Republicans make no pretense of building bipartisan support. Wednesday’s vote to open the Biden inquiry fell entirely along party lines. Republicans are simply playing to their base. While they no doubt expect that the Senate would acquit Biden given the chamber’s Democratic majority, conviction doesn’t seem to be the objective – instead, impeachment seems aimed at retaking the White House, with perhaps a side benefit of gutting impeachment as an impediment to Trump’s dictatorial ambitions.

Furthermore, Republican House leaders have made no effort to justify their actions based on the original meaning of the Constitution, which in other contexts Republicans insist is the only principled basis for constitutional interpretation. The framers regarded impeachment as a serious, not partisan, mechanism for holding presidents accountable for their proven misconduct.

Indeed, impeachment was central to our nation’s founding. In the Declaration of Independence, the signatories listed 27 articles of impeachment-like charges against the British monarch, who in England couldn’t be subject to impeachment. They were determined to establish a new nation and fashion a written constitution in which no one, including the president, was above the law.

At the Constitutional Convention, James Madison declared impeachment “indispensable” for addressing serious presidential misconduct, while George Mason worried, “Shall any man be above Justice?” Lowering the standard for impeachment to hurt Biden politically both fails to do justice to the original conception of impeachment and creates a problematic precedent.

Republicans today are also deviating from recent Supreme Court precedents limiting the scope of the House’s investigative authority to search for evidence that fits clearly, specified objectives. The high court delivered a unanimous order that Nixon had to comply with a judicial subpoena seeking specific evidence – taped White House conversations – that was instrumental to Nixon’s downfall. He complied, but at the cost of producing the tapes that sealed the case for his removal. In 2020’s Trump v. Mazars, the Supreme Court declared that a fishing expedition, in contrast, was not a “legitimate” exercise of the House’s authority.

Yet the GOP voted last week to authorize an impeachment inquiry against Biden despite not having any new or credible evidence of wrongdoing by the president (as opposed to his son Hunter, the main focus of the investigations thus far). It seems clear that they want to use their new subpoena powers to extend their fishing expedition into the president’s financial records with the hope of turning up something that might embarrass him.

If the Republicans succeed in effectively turning impeachment into a stunt, I suspect I’m not alone in worrying that they will have gutted the most important constitutional check – impeachment – that we had left to protect us from a president bent on lawlessness and vindictiveness.

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