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THE CALL FOR the removal from office of President Richard Nixon is premature. The president has released the Watergate tapes and stands in full compliance with Judge Sirica's order, removing the long-standing constitutional impasse which had come to a head last weekend. The House of Representatives has begun a legitimate and reasonable inquiry into impeachment, but as yet neither prosecutors nor the Watergate committee has enough evidence to link the president to any criminal acts.
The Justice Department has again absorbed the judicial investigation, but the pressure for a special prosecutor and the new, more flexible attitude adopted this week by the Nixon administration should soon act to re-establish a legitimate and independent inquiry.
The main question confronting Congress last Monday was constitutional rather than criminal. On the tapes issue, each branch of government, acting to assert its own power, maintained it had a right to the tapes. The president clung to executive privilege, Congress stood behind its investigatory power, and the courts claimed the right to judicial review.
As long as the president held fast to his position and the courts rejected the appeals of Congress, the dispute raged between the executive and the judicial. Growing public opinion favoring impeachment broke the impasse and forced Nixon to capitulate.
Constitutional processes are functioning again. Congress, by inquiring into impeachment, is exercising its power to investigate the president and the president is acting in full compliance with the courts.
Nixon abandoned the principle of executive privilege but has profited by shedding himself of the "quasi-constitutional" mechanism of the special prosecutor. However balanced investigation by Archibald Cox '34 may have been, the idea of a Kennedy Democrat who filled his top four investigative posts with fellow Kennedy Democrats could not have been pleasing to the administration. Nixon decided over the weekend that a bi-partisan House inquiry and a friendlier judicial arrangement would be preferable to Archibald Cox and his staff of 80 crack lawyers examining all the president's activities and papers. If Congress tries to appoint a new special prosecutor, the president and the Republicans will be in a position to secure guarantees that the new attorneys are not "out to get the President."
Nixon directly challenged Congress last Friday to arbitrate his dispute with the judiciary and impeach him if necessary. Impelled by popular support, Congress has now found the guts to assert itself--Nixon backed off.
BUT IMPEACHMENT CANNOT be built upon old issues which Congress did not have the courage to face a long time ago. Representatives who come forward with resolutions to impeach Nixon on war crimes and so-called unconstitutional acts are illegitimate. By simple statute, Congress could have cut short the Vietnam war or countermanded Nixon's impoundment of funds. These issues have been before the courts.
Students and other citizens who have always opposed Nixon's presidency understandably favor his removal from office. But the British form of impeachment, used to enforce ministerial responsibility, is absent from the U.S. Constitution. Impeachment on political grounds while technically possible, would be wrong. The Senate, under oath and sitting as judges at a trial, will be compelled by the public to adhere to legal rather than political principles.
The late President John F. Kennedy '40, would have condemned a political impeachment of Nixon just as he abhorred in Profiles in Courage, the attempt to oust Andrew Johnson. Whether the issue is over secret bombings of Cambodia or a militarily imposed reconstruction of the South, the public and Congress should oppose an impeachment which places the opposition party in power.
The ground swell of public opinion over the weekend had its deepest support among citizens who dislike Nixon and his policies. The outpour of new impeachment supporters, however, came from those who felt strongly that the President was placing himself above the law by threatening to defy Judge Sirica. Nixon recognized this reality when he instructed his lawyer, Charles Alan Wright, to state simply, "This president does not defy the law." This catch-phrase will be the cornerstone of Nixon's Watergate strategy in the coming weeks.
If Nixon can present himself as an executive who adheres to the law, he can restore popular faith, sizably reduce impeachment sentiment, and hold onto the presidency.
Further investigation, however, could prove the new Nixon rhetoric as hollow as "a generation of peace." Congress would have to impeach and convict Nixon for Watergate-related crimes or obstruction of justice. Moral right and public sentiment would demand it.
IMPEACHMENT, THOUGH, should not imply conviction without trial. The tapes and other documents may eventually show Nixon innocent of criminal acts but guilty of interpreting an executive prerogative too broadly. If this is so, then removal could be averted if Congress were assured of a realignment of power within the government.
As Nixon has demonstrated with Tuesday's pledge to release the tapes, his position can be a dramatically flexible one. A Nixon innocent of crimes will be able to yield to executive-limiting legislation and provide a full accounting of activities. Ultimately, of course, he will have to decide when the presidency would be left powerless, forcing his resignation.
Conviction should be avoided not only because it is rash and precedent-setting, but also because it raises serious political questions. Carl Albert would be a weak executive, under the control of the Democrats in Congress. Gerald Ford would be incompetent, especially in international affairs. Perhaps what will finally keep Nixon in office will be the reluctance of Congress to replace him with either of these men.
By changing the succession act or negotiating a resignation deal, Congress could select a new president. The Democrats, however, would be faced with the divisive task of choosing one of their own to take control of the government. Whenever possible, courts avoid ruling on constitutional issues to preserve the consistency and the continuity of the law. Congress, in considering impeachment and conviction, must be prepared to do the same to preserve the government.
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