“We know what a constitutionally serious impeachment process would [look] like; we saw that happen both with President Nixon and with President Clinton. This is not that. This is not a search for the truth. This is not a situation where you’ve got the majority, the Democrats, who are upholding their constitutional duty and trying to get to the truth.”
— Rep. Liz Cheney (R-Wyo.), speaking to reporters, Oct. 22
A persistent complaint by Republicans is that the Democrat-led House of Representatives is conducting an impeachment inquiry against all precedent and tradition. As we have noted previously, the House impeachment inquiry is akin to a grand jury and a prosecutor filing charges, while the Senate holds a trial.
Now let’s look at a narrower question, reflected in the quote — how does the current situation compare with the impeachment inquiries against Richard Nixon and Bill Clinton? The proposed Senate resolution introduced Oct. 24 by Sen. Lindsey O. Graham (R-S.C.) and co-sponsored by 44 colleagues also unfavorably compares the current process with the impeachment process used against Nixon and Clinton.
The answer depends on where you start the clock.
The Facts
The investigation into President Trump’s handling of relations with Ukraine — and whether he froze aid to pressure the country’s president to announce a probe into a political rival, former vice president Joe Biden — started with a whistleblower complaint forwarded by the inspector general of the intelligence community. The complaint itself is only a few pages long, making allegations about the president’s July 25 call with Ukrainian President Volodymyr Zelensky and the events that led up to that conversation. So far, much of what the whistleblower alleged appears to have been confirmed.
On Sept. 24, House Speaker Nancy Pelosi (D-Calif.), announced that she was directing six committees “to proceed with their investigations under that umbrella of impeachment inquiry.”
The main inquiry into the Ukraine call is being led by the Intelligence Committee, which has been calling witnesses to provide testimony behind closed doors. Democrats say public hearings with many of the same witnesses will be held later, but for now the private interviews are needed to make it more difficult for witnesses to coordinate their stories. Both Democrats and Republicans question the witnesses under rules set by then-House Speaker John A. Boehner in 2015.
The issue is whether this is an investigation or the start of the impeachment process. According to the Congressional Research Service, “In the past, House committees, under their general investigatory authority, have sometimes sought information and researched charges against officers prior to the adoption of a resolution to authorize an impeachment investigation.”
Democrats say that’s what they are doing, and the comparison to Nixon and Clinton is misplaced because both of those impeachments stemmed from investigations that had already taken place. Republicans say that since Pelosi announced that the House had started an impeachment inquiry, the process has already moved beyond the traditional oversight and investigative process.
Here are the two timelines.
Nixon
June 17, 1972: Watergate break-in
May 17, 1973: Senate Select Committee on Presidential Campaign Activities began holding public hearings. Witnesses were interviewed privately by staff and then testified publicly and were questioned by senators. For instance, on July 13, former presidential aide (and then head of the Federal Aviation Administration) Alexander Butterfield was interviewed by staff and reluctantly revealed that Nixon had a secret taping system in the Oval Office. He then repeated the information in a public hearing.
May 18: Archibald Cox Jr. was appointed special prosecutor. (He was later ordered fired by Nixon over his demands to obtain Nixon’s Oval Office audio tapes and he was replaced by Leon Jaworski, who eventually obtained them.)
Oct. 30: House Judiciary Committee adopted resolutions authorizing the issuance of subpoenas without the consent of the full committee. This appears to be when the committee started its inquiry, confirmed by a committee report saying that the “committee began during the final months of the [1973] session the preliminary phases of an inquiry into possible impeachment charges against Richard Nixon.”
Nov. 11: House approved funding for an impeachment investigation.
Jan. 31, 1974: Judiciary Committee approved H. Res 803, giving committee power to conduct an impeachment inquiry.
Feb. 6: Full House debated and adopted H. Res. 803, which authorized the committee to subpoena witnesses, testimony, and documents as part of a possible impeachment of Nixon. The resolution provided for coequal subpoena power to the committee head and ranking member and allowed the president’s lawyer to receive documents, hear the presentation of evidence, recommend witnesses for the committee and cross-examine the witnesses.
May 2: The committee adopted a set of procedures for the presentation of evidentiary materials by committee staff. (Much of the early deliberations were held behind closed doors, out of public view.)
July 23: The committee adopted procedures governing the debate of articles of impeachment.
July 24-30: The committee held a televised debate deciding whether to impeach, after which the committee voted to recommend impeachment. (Nixon resigned Aug. 9.)
Clinton
January 1994: Robert Fiske was appointed special prosecutor to investigate Bill Clinton’s land deals. Fiske was replaced by Kenneth Starr on Aug. 5. Starr ultimately investigated Clinton’s conduct while he was a defendant in a sexual harassment lawsuit filed by a former Arkansas state government employee, Paula Jones, which led to allegations he lied under oath about an affair with White House aide Monica Lewinsky.
Sept. 9, 1998: House received Starr report.
Sept. 11: House adopted H. Res 525 to direct the House Judiciary Committee to determine “whether sufficient grounds exist to recommend to the House that an impeachment inquiry be commenced.”
Oct. 5: The committee adopted H. Res. 581, authorizing it to conduct an impeachment inquiry, as well as procedures governing such an inquiry. The rules were like the resolution governing the Nixon impeachment.
Oct. 8: House adopted H. Res. 581.
Nov. 19: Starr was interviewed by the committee.
Dec. 10-12: Committee debated and passed articles of impeachment.
Dec. 16: House adopted resolution impeaching Clinton.
In both cases, a fair amount of preliminary work had been done before the House Judiciary Committee began to consider whether to start the impeachment process.
In the case of Nixon, there had been months of hearings in the Senate and a grand-jury investigation by a special prosecutor. The House Judiciary Committee then worked on “preliminary” impeachment work for three months before formally adopting a resolution to conduct an inquiry, with funding also approved about three months before the formal start.
In the case of Clinton, a special prosecutor had been investigating Clinton for almost four years (though the core of the impeachment case concerned events investigated in the final year). The House acted quickly once it received the report, but much of the investigative work had been done, with the prosecutor as the key witness.
But unlike those previous impeachments, there is no special prosecutor investigating Trump’s actions against Ukraine. Instead, the investigation is beginning in the Intelligence Committee. It’s a unique situation compared with the Nixon and Clinton impeachments. (Republicans note that Clinton and Nixon were able to tangle with the prosecutors, litigating points of privilege, during those investigations, something not available to Trump now.)
The Bottom Line
To some extent, it is a matter of opinion about where to start the clock, and so we will not be issuing a Pinocchio rating. But it’s clear that not every impeachment process unfolds in the same way. There is nothing in the Constitution that requires that the House first vote to authorize an impeachment inquiry before information on possible offenses is collected.
The House Intelligence Committee is still gathering the facts and collecting witness testimony. Rep. Adam B. Schiff (D-Calif.) has said he will release transcripts of the interviews and then hold public hearings, which sounds a lot like the Senate Watergate hearings.
Then, if there is enough evidence to pursue impeachment, the action would move to the Judiciary Committee and a House vote. For Democrats, that’s when the process in theory would begin to work on the same track as the Nixon and Clinton impeachments. Republicans argue that it should have started there in the first place, given Pelosi’s announcement. But the situations are not necessarily analogous.
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