For the granular details of the Agnew story – listen to Rachel Maddow’s fascinating multi-part podcast – Bagman
The Vice President
Spiro “Ted” Agnew was the Republican Vice President of the United States from 1969 until his resignation in October of 1973. Richard Nixon picked him to use as the “sharp end of the spear” against critics and enemies of the administration. Agnew’s particular target was the press. He described them as those, “…nattering nabobs of negativism,” and “…effete corps of impudent snobs who characterize themselves as intellectuals.”
Agnew’s political career began as the County Executive of Baltimore County, Maryland. Like many who held this office, Agnew quickly succumbed to corruption, taking bribes from some of the service and construction contractors. When Agnew successfully ran for Governor of Maryland, the bribes continued.
Even when he moved to the White House in Washington, small white envelopes filled with cash continued to arrive. Agnew was a corrupt politician. In the old tradition of Tammany Hall and the “Boss” politics of the late 19th century, he traded his influence for money.
The US Attorney in Baltimore discovered Agnew while investigating systemic corruption in Maryland politics. He took his evidence to the Attorney General, Eliot Richardson. Richardson was just recently appointed by Nixon. His two predecessors were embroiled in the Watergate scandal. One went to jail.
Richardson realized that the Watergate scandal could ultimately reach Nixon. Should the President be removed or resign, it seemed intolerable that the Vice President was a criminal as well. But Richardson also was concerned that prosecuting the Vice President would create a Constitutional crisis that might effect both cases. The issue: could the President and Vice President be prosecuted for crimes while serving in office.
Office of Legal Counsel
He turned to the internal lawyers in the Department of Justice, the Office of Legal Counsel (OLC), to determine what the law required. Could they prosecute the Vice President of the United States for simple criminal offenses like bribery while he was still in office? Or was it required that the Congress impeach and remove him from office first?
Like any good lawyers, the Office of Legal Counsel understood what their mission was. There is no part of the Constitution that states the President or Vice President is immune from legal prosecution. But there was precedent, going back to President Jefferson. He refused to appear as a witness in the Aaron Burr treason trial, even when subpoenaed. That indicated that the President had at least some protection.
But the Department wasn’t going after the President, yet. They were going after the Vice President, who given the course of the Watergate crisis, might soon be President. So the OLC created a “legal” distinction between the two offices. The President, because of the immensity of his duties, gained legal immunity, while the Vice President with his lesser obligations was open to prosecution.
It was just an opinion of the Justice Department. It wasn’t a “law” or a “court precedent.” It gave the Department legal cover as they went after Spiro T. Agnew, the Vice President of the United States.
When faced with charges, Agnew’s lawyers argued the Constitutional issue. But as the facts were laid out, it was clear Agnew was guilty, and he cut a deal. He avoided jail by pleading “no contest” to tax evasion, and resigned from his office. Under the 25th Amendment to the Constitution, Nixon appointed a new Vice President. The Republican Minority Leader of the House of Representatives, Congressman Gerald Ford became the new successor. When Nixon ultimately resigned a few months later, Ford became President of the United States, the only one never elected to a national office.
Mueller Speaks
Special Counsel Robert Mueller testified to the House of Representatives on Wednesday. The Mueller Report laid out clear evidence of President Trump’s obstruction of justice, but in the report never concluded that he should face charges. Mueller was stopped by the 1973 OLC opinion, still binding on the Department of Justice. It has never been tested in Court, never affirmed in law. It is simply the opinion of the Office of Legal Counsel, written for the purpose of removing a corrupt Vice President from office.
The OLC opinion creates a blanket immunity from criminal prosecution for the President of the United States that the founding fathers did not intend. He can literally “…shoot someone in the middle of Fifth Avenue.” It essentially raised the President “above the law,” postponing any legal consequences for his actions until after he leaves office. It places the burden on Congress to decide if he should be removed through impeachment to face the legal consequences.
Exoneration
Mr. Ratcliffe, Republican from Texas, made the point: how can Mueller state that the President was “not exonerated” when the President should “be presumed innocent unless proven guilty.” Prosecutors in the United States are not in the “exoneration” business. Charge or not charge; convict or dismiss, guilty or not guilty: those are the choices prosecutors have. Exoneration is not a normal choice. And Mr. Ratcliffe is right, except that the President is far beyond “normal” business. He is protected by the OLC opinion.
If the President cannot be prosecuted, cannot even be indicted, then he cannot be tried and found innocent or guilty. The Special Counsel was given the mission to investigate the President, but prevented from charging him.
In legal terms, if you’re not charged, your not guilty. But the President is not chargeable according to the OLC. This is the ultimate conflict that Mueller faced in his investigation; he had to determine whether the President violated the law, but was constrained from actually charging him with those violations.
We End Where We Began
So we have spent a day listening to Democrats read the Mueller Report to Mr. Mueller himself, who then acknowledged their accuracy. And we have listened to the same “wild hare stories” of the Republicans, from Jim Jordan to Devin Nunes, not denying Russian involvement, but somehow saying they were helping Hillary, and we shouldn’t have looked anyway.
And as for Mr. Mueller; he is a man of his word, or more exactly, his lack of words. He said he didn’t want to testify, and he did his level best not to. It could be argued that he is acting as a man of principle, or that he is avoiding more controversy, or that he is simply a tired man who wants to go home.
Regardless, the Democrats are faced with a conundrum. They have done all they could to demonstrate the need for impeachment, and, not surprisingly, they have changed few minds. The people who agree that the President committed crimes want impeachment proceedings to begin, and those that do not agree demand we “move on.”
There are many factors for Democrats to consider, political as well as legal. But the one thing Wednesday’s hearings show, is that most of the Democratic Congressmen believe the President has committed crimes. Because of this, it is their Constitutional duty to act upon that belief. They should proceed with impeachment, not because it is politically expedient, but because it is the right thing to do.
To quote Congressman Ted Lieu of California, “…we have a felon in the White House.” If that is true, or Congress thinks that is true, than they have a Constitutional duty to proceed.
Chairman Nadler and the House Judiciary Committee should open impeachment hearings, now.
I disagree.
1. There is no Constitutional “duty” to impeach, only a “right” to do so.
2. This is a situation where we have to look at the big picture, define the problem, and solve it in light of the practical ramifications.
Just as with Agnew, the problem was ‘how to remove Agnew from office’. There was a right to prosecute, but instead, Richardson chose to “negotiate”, in that case a plea bargain solved the problem better than prosecution.
In the present case, the problem is ‘how to remove a President who has committed repeated high crimes but who nevertheless has strong widespread support’.
Two options are: Impeach, or defeat in the 2020 election. Evaluate the options:
1. Impeachment will not succeed in removing him from office, but could arouse his supporters to work harder to reelect him. Nevermind that the impeachment process takes time and we are only 16 months from the election.
2. Winning the election solves the problem. The Democrats have time to collect and publicize all the reasons Trump should not be President.
So on this one we will have to agree to disagree.
1. The House of Representatives is mandated to defend the Constitution. Clearly, a criminal President represents the exact kind of threat the Founding Fathers put the impeachment process into the document for. To not proceed because of the ‘politics’ is setting a precedent that will echo through our history.
2. it’s not a “binary” choice. the House can begin impeachment proceedings while the Democrats run for President. What impact will impeachment have on the electorate? It’s hard to see how someone is going to change from a Dem to vote for Trump because he’s being impeached. Seems more likely that those folks in the middle, former Trump supporters, who see what he has done and is doing, might well be influenced to vote for someone else of not vote at all. His supporters are going to be as “aroused” as they can get no matter what. They are a “known-known.” But politically, a Democratic House that looks emasculated by Trump will not arouse the Democratic base.
3. The political argument, ignore Trump and talk about healthcare and such, looks silly. Democrats need to confront Trump, immigration, and racism, as well as talk about their plans for healthcare, the economy, and the rest. The “rules” of campaigning from 2016 and the past don’t apply in our new age. Dems need to confront the issues, all of them. Impeachment will help them along the way.
4. The House can begin the process. As the process continues, we will see if it’s persuasive enough to send to the Senate. I don’t think that’s likely, but it will highlight another Democratic campaign point – if the Senate remains in the clutches of McConnell, it will be hard to get anything done – even by a Democratic President.
This is a very well stated article (as usual), & the exchange between Marty & Doug was also well stated, on both sides. I want to add one thing on Mueller’s “lack of words.” There was no lack of words: he wrote, what, something like 500 pages of words. From the start, he viewed the report as standing on its own. The report speaks for itself, & for him. So many had so much hope built up in that document, and when it came out, & wasn’t entirely what they wanted, they tried desperately to get him to go beyond the words – the many words – he had carefully chosen. Now I hear suggestions that perhaps he’s not well, or is tired. I don’t think that’s the case at all. I think Mr. Mueller said a lot, picking his words carefully & deliberately, & always intended for that work to be his best, last, final, complete statement of findings. He never had any intention of offering opinions beyond it, or speculating, or talking about the things he didn’t talk about. Nor should he have.