Today’s grievances are not unlike the nation’s first ‘Articles of Impeachment’

While they were not called Articles of Impeachment, the 18 grievances against King George III set forth in the Declaration of Independence are the first effort at the very founding of the United States to identify the grounds on which a head of state could lose his right to rule.     

John Doar, chief counsel for the Nixon impeachment inquiry, made this very point to me when he asked me — then a young staff member on that inquiry — to draft Articles of Impeachment. He said that the articles should read like the Declaration of Independence. 

Substantively the “long train of abuses and usurpations” catalogued in the Declaration were connected by King George’s contempt for the rule of law and his refusal to recognize in the case of the American colonies the accepted limits on the power of the monarch and the rights of the people to legislative government. As set forth, justice was obstructed, duly adopted laws were not executed, and royal assent to wholesome legislation was arbitrarily withheld, among other grievances.

But I believe Doar’s main point went to two facts about the Declaration’s list of grievances that have relevance today, as they did in the case of President Nixon: 1) the grounds for the loss of the right to rule involve a “long train” of wrongs amounting to a course of conduct over time, and 2) the offenses charged were not crimes.

Both of these concepts informed the Articles against President Nixon and the House Judiciary Committee’s understanding of the phrase “high crimes and misdemeanors.”

Just like the Declaration of Independence, the Nixon Articles did not focus on a singular event but rather on a “long train” of abuse. Article I set forth nine examples of obstruction of justice. Article II set forth five examples of abuse of power.  

The examples of Nixon’s obstructing justice included, but were not limited to, the payment of hush money to Howard Hunt. This payment and its approval by the president on March 21, 1973, were the main focus of the grand jury report delivered by the special prosecutor Leon Jaworski to the committee. Jaworski believed the payment of hush money constituted an ironclad case of obstruction of justice. The House Judiciary Committee, however, included eight additional obstruction allegations that set forth a course of conduct over time.    

Article II set forth abuses of presidential power. It charged abuses of power that only the president could commit and were, therefore, not a part of the ordinary criminal law.   

Article II received one more vote than Article I, the Obstruction of Justice Article. It is now widely accepted that impeachable conduct does not have to be a crime. Recently, the Department of Justice (DOJ) reiterated that point clearly in its Sept. 13 brief (page 24) in opposition to the House Judiciary Committee’s request for grand jury materials. 

House Speaker Nancy Pelosi (D-Calif.) has stated that the ongoing impeachment inquiry will focus on the recent whistleblower complaint alleging that President Donald Trump solicited assistance in his re-election campaign from Ukrainian President Volodymyr Zelensky. The focus of the current inquiry, however, does not necessarily limit the topics that could be covered — if and when Articles are drafted — in view of information that earlier investigations have uncovered as well as any wrongs that still may be exposed or the president’s commission of potential impeachable offenses in plain sight.    

To show a “long train” of abuse, an Article addressed to a particular impeachable offense could be supported by multiple instances of conduct constituting that offense.  

For example, an Article addressed to President Trump’s alleged subversion of constitutional democracy by reportedly encouraging foreign assistance to help secure his re-election in 2020 could cite his encouragement of both Ukrainian and Russian assistance to that end and any efforts to prevent disclosure of that misconduct.

Nor would such an article necessarily be cast exclusively in terms of criminal conduct. The president’s liability for impeachment need not turn on violation of our campaign finance laws.

An Article addressed to presidential contempt of the role of Congress under the Constitution also  could allege instances beyond the unprecedented and unjustified invocation of executive privilege on a blanket basis. Article drafters could conclude that President Trump has shown contempt for the constitutional role of Congress by spending funds for a purpose expressly rejected by Congress, by closing down the government when Congress refused to appropriate funds for this purpose, and by avoiding Senate confirmation hearings by leaving officials indefinitely in an acting capacity.  

These allegations clearly echo the recital of grievances against King George in the Declaration of Independence, our nation’s first Articles of Impeachment.

Evan A. Davis was a member of the U.S. House Judiciary Committee Impeachment Inquiry staff in 1974 and led the Watergate and Cover-up Task Force. He is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).