The Impeachment Question Is Back : It's Appropriate to Start Asking What Reagan Didn't Do

Peter Irons, a constitutional lawyer, is a professor of political science and director of the Law and Society Program at UC San Diego.

Is it too early to talk about the impeachment of Ronald Reagan? Do we have enough evidence, at this stage of the Iran- contras affair and its investigation, to support articles of impeachment? If so, will any member of the House of Representatives be willing to endure the political abuse that would be heaped on the author of the first impeachment resolution?

I think that the time has come to open a public discussion of what the late columnist Joseph Kraft called, early in the effort to remove Richard M. Nixon from office, "the political equivalent of nuclear war."

Any impeachment debate will invite comparisons of Watergate and the current White House scandal, of Nixon and Reagan. Those who pooh-pooh any talk about impeaching President Reagan will stress the differences between the two men and the two cases. Watergate involved a President whose absorption in detail sucked him into cover-up arrangements and pay-off discussions. Nixon's inquisitors asked, "What did he know and when did he know it?" It turned out that he knew everything, and had recorded on tape his malfeasance in office.

Now the question being asked about Reagan is, "What did he not know and why didn't he know it?" The President's admitted inattention to detail would convict him--absent proof of personal involvement in criminal acts--only of nonfeasance, the failure to perform the duties of his office.

But before we look at the particulars of the Reagan case, a look back is in order.

Talk about the possible impeachment of Nixon began early in 1973, but only as whispers "inside the Beltway." The Senate set up its Watergate committee, headed by Sam Ervin, on Feb. 7 of that year, and Ervin broached the issue of impeachment, gently and dismissively, at a committee session on April 10. But no member of Congress, despite mounting evidence of Nixon's cover-up involvement, was willing to utter the word impeachment on the floor of either chamber.

Partisan politics, not the lack of evidence, lay behind this congressional reticence. Democrats proclaimed in public their desire to wait for the report of the Ervin committee, while in private they wanted to let Nixon "twist slowly in the wind" as long as possible while his credibility and clout evaporated. After Nixon's first real statement concerning Watergate, a 4,000-word apologia issued on May 22, Majority Whip Robert Byrd said that he saw "no hard evidence" linking Nixon to the cover-up, and he denounced impeachment talk as "at best premature and at worst reckless."

Democratic reluctance to foreshorten the grilling of Nixon's aides by Ervin's panel made a lonely Republican the first to suggest impeachment. Rep. Paul N. McCloskey of California secured 60 minutes on June 6, 1973, to address the House. His prepared speech carefully and precisely laid out the existing case against Nixon for "obstruction of justice" in ordering the Watergate cover-up.

McCloskey never got past the opening words of his speech. Nixon loyalists among his colleagues jumped up, demanded a quorum call, and began rushing their troops to the House floor to disrupt McCloskey's talk. Facing a parliamentary mess, he abandoned his effort and moved for adjournment. Ironically, the first impeachment article voted by the House Judiciary Committee more than a year later tracked McCloskey's aborted speech almost verbatim. None of the evidence that had been unearthed in the interim added more than corroborating detail to his initial charges.

Nixon himself blasted open the impeachment logjam with his "Saturday Night Massacre" in late October, when he fired Special Prosecutor Archibald Cox in a desperate move to keep the "smoking gun" tapes out of court. On the next Monday, 84 House members lined up to sponsor impeachment resolutions. Once set in motion, this constitutional juggernaut could not be stopped until Nixon resigned to avoid the inevitable: removal from office.

My point in this capsule review of Watergate history is that talk about impeaching Reagan is hardly premature. All that is lacking is political will and courage. What could another McCloskey cite to the House as evidence?

The first impeachment article could rest on violation of Title 18, U.S. Code, Section 956. This federal criminal statute makes unlawful any conspiracy "to injure or destroy specific property situated within a foreign country" with which the United States is not formally at war. Reagan's personal approval of the March, 1984, mining of Nicaraguan waters and harbors falls within this criminal prohibition. Several ships were damaged and a half-dozen sailors injured by the unlawful mining.

Both the Central Intelligence Agency and the National Security Council staff, most notably Lt. Col. Oliver L. North, have arguably violated Section 960 of Title 18. This statute makes unlawful any act that "prepares a means for or furnishes the money for, or takes part in, any military or naval expedition" against other countries in peacetime. North's evident role in funneling Iran arms-sales profits to the contras, through CIA conduits, was in violation of federal statute.

Here the malfeasance/nonfeasance distinction becomes relevant. Should evidence emerge that Reagan ordered or approved unlawful acts, he would clearly be culpable. And an official who should know when his subordinates are engaging in unlawful activity is equally culpable, in law, as ordering the crime.

One point of comparison between the situations then and now should be made. Nixon's obstruction of justice stemmed from an effort to influence domestic politics. In contrast, the Iran-contra scandal involves foreign affairs, over which the Constitution gives the President great powers. White House crimes in this area, during the nuclear age, threaten not only our laws but also our lives. We must accordingly hold the President to the highest standards of probity.

The counsel of caution will surely greet this proposal that impeachment should again be seriously considered and discussed. Why not let the Senate and House committees complete their investigations? Why not let the independent counsel finish his job? Why this rush to judgment?

These are reasonable questions. Their answers lie in the risk of some bellicose response by President Reagan to his political paralysis. We could wait a year for Congress and the courts to press Nixon to come clean on Watergate. We cannot wait for Reagan to invade Nicaragua or send the Marines into Syria.

In the upbeat peroration to his State of the Union speech, Reagan invoked James Madison. Two centuries ago Madison spoke of conduct in our highest office. "A President is impeachable if he attempts to subvert the Constitution," he told the Consitutional Convention. Madison also advised the First Congress that a President who "neglects to superintend (his subordinates') conduct, so as to check their excesses," can be impeached.

We have probable cause now to believe that Ronald Reagan has broken his Constitutional oath to "take care that the laws be faithfully executed." We have probable cause to believe that his subordinates committed crimes. It is not too early to talk about impeachment.

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