Trump’s culpability is greater than Nixon’s

The prevailing narrative following the recent public hearings to consider impeaching President Donald Trump is that Democrats may have made the legal case but did not make the political one. They did not alter the political landscape and Republican support for Trump. That says more about the political environment than the substance, because Trump’s culpability is greater than that of former President Richard Nixon. I can attest to that because I led the Watergate and Cover-up Task Force on the staff of the U.S. House Judiciary Committee Impeachment Inquiry in 1974. 

Nixon was the subject of a formal impeachment process but was not impeached by the House, having resigned in the face of dwindling political support. Ironically, he is the only president ever to have been removed by such a process. Presidents Andrew Johnson and Bill Clinton were impeached by the House of Representatives (in 1868 and 1998, respectively) but were not convicted by the Senate.

The fact that Nixon was removed from office by the impeachment process makes the substance of his case especially relevant. With the House widely expected to impeach Trump, the core question is whether his offenses are enough to deserve removal by the Senate.

Before turning to the question of comparative harm caused by the two presidents, it is important to note three important differences between them.  

First, in Nixon’s case, the Watergate break-in utterly failed to achieve its purpose of planting bugs to gather dirt on Nixon’s reelection opponents. In Trump’s case, the Russians were successful, with Trump’s encouragement, in using cyber-espionage to gather information that could be harmful to Hillary Clinton’s campaign. They also were successful in waging a pro-Trump disinformation campaign through social media.

In Nixon’s case, the cover-up of the break-in failed, in large part because of a legendary whistleblower. Associate FBI Director Mark Felt, whom White House Chief of Staff H.R. Haldeman had assured Nixon would be cooperative, turned out to be the famed whistleblower known as “Deep Throat,” whose identity Felt revealed himself in 2005, 31 years after Nixon left office. In Trump’s case, he sought to end the investigation of Russian interference in the 2016 election as well as of his or his campaign’s potential criminal liability as an accessory to that interference. 

The effort to obstruct the Russian interference investigation was not successful — the Mueller Report found that Russian interference was widespread and systematic — but, with respect to the complicity investigation, witnesses close to the president have failed to cooperate, and we don’t yet know Trump’s role, if any, in that lack of cooperation or what the information being withheld would disclose.

Third, in Nixon’s case there was never any credible evidence that Nixon approved or knew about the break-in in advance. Trump, on the other hand, apparently not only welcomed and encouraged this Russian cyber-espionage activity, he was the prime mover in soliciting Ukrainian President Volodymyr Zelensky to investigate the son of his leading presidential election rival, former Vice President Joe Biden, as well as the Russian claim that Ukraine, rather than Russia, had hacked the emails of the Democratic National Committee and had taken possession of the DNC server.      

These three differences all point in the direction of Trump’s greater culpability, but consideration of the relative harm caused to the nation makes Trump’s greater culpability clear. That is because the word “high” in the phrase “high crimes and misdemeanors” denotes serious offenses that harm our system of government under the Constitution.

Nixon’s misconduct harmed the rule of law, and the principle that no person is above the law, by using the powers of his office to obstruct justice. He violated the Constitution by failing to take care that the laws be faithfully executed. That harm was serious, and it was important that Nixon was held accountable. But had his misconduct not been sanctioned, there would not have been ongoing harm to our democracy or our national security. A failed cover-up of a failed burglary lacks the force to alter our constitutional democracy or imperil the safety of the state.  

Trump’s misconduct has harmed the rule of law and violated the Constitution, which bars solicitation or encouragement of campaign assistance from foreign governments. Public confidence in the fairness of U.S. elections is critical to our democracy. If a president is not held accountable for using the power of his office to solicit and encourage campaign aid from a foreign government, foreign interference in our campaigns will continue and increase, and our ability to steer our own course through fair elections will be greatly impaired.

Failure to hold Trump accountable also will cause harm to our national security. Normally, we can have basic confidence that the president is making national security decisions in the interest of the nation. That is not the case with Trump, when his judgment is conflicted by gratitude for Russian campaign aid, or, as in the case of Ukraine, a willingness to subordinate our national security in supporting Ukraine against Russian aggression to his apparent desire for campaign assistance.

Based on a comparison of facts and the extent of the continuing harm, it is more important to hold Trump accountable than it was to hold Nixon accountable. The question now is: Will Congress be accountable?

Evan A. Davis, an attorney, 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 also is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).