RUSH H. LIMBAUGH SR. IN 1974: IMPEACHMENT HOLDS DANGERS

Rush H. Limbaugh Sr. of Cape Girardeau, who died in April 1996 at age 104, was one of state's leading legal voices. At the time of his death, he was the oldest practicing attorney in the nation. In June 1974, as the nation was weathering the likely impeachment of President Richard M. Nixon, Limbaugh wrote an essay on the impeachment process and its many dangers. That essay contains thoughts that are just as appropriate in 1998 as they were in 1974: Here is the essay:

If the impeachment process is used against President Nixon, the first phase of the process will have been preceded by perhaps one of the most enormous and relentless investigations of an official's conduct ever made in this country.

Instead of the investigatory process having originated in the House of Representatives, it will be remembered that it has been in progress by a special committee of the Senate of the United States for more than a year. Two special prosecutors with staffs of a number of lawyers and others have been probing for months into the conduct of the president and his associated, encouraged and assisted by an array of the news media.

The Judiciary Committee of the House of Representatives, which has the powers to investigate for the House, is making its own investigation, having at its hand access to the results of the other investigating bodies.

From the mass of evidence assembled in these investigations, it is expected that the committee will formulate articles of impeachment against the president. When the committee makes its report to the House, it will likely recommend that the House vote for or against impeachment.

When the report, with the articles of impeachment and recommendations of the committee come before the whole House, the members of that body will debate the question as to whether to favor or oppose impeachment. Following the debate, the members of the House will vote for or against impeachment. If a majority of the members vote against impeaching the president, this will terminate the proceedings.

If a majority of the House of Representatives should vote to impeach the president, the articles of Impeachment will be sent to the Senate. Upon receipt of the articles, the Senate will abandon its legislative function for which it was primarily elected and resolve itself into a court.

As a court, it will be known as a High Court of Impeachment. The chief justice of the United States will preside. Lawyers from the House selected by the members of the House and called managers will conduct the prosecution of the articles against the president.

DEFENSE

The president, represented by a counsel, will conduct his defense, and may or may not appear in person. For the conduct of the trial, there will be a paradoxical fusion of the three departments of the government, each of which will be exercising powers contrary to those with which they are primarily vested by the Constitution, and altogether operating in violation of the basic constitutional doctrine of separation of powers.

The Senate, composed of 100 members, will sit as a single court and will hear and control all of the proceedings of the trial. The trial will be conducted according to its own rules. The members of the Senate may at any time during the course of the trial amend or modify these rules.

Although the trial will be in the nature of a criminal proceeding, the president will be denied many of the basic rights the law vests in one charged of a criminal offense. He will have no right to a change of venue, irrespective of the fact that members of the High Court of Impeachment may have prejudged his guilt or innocence, for there is no court or other body vested with authority to receive the case on change.

The president will not be allowed the privilege of challenge for cause or to strike from the list of senators anyone who may favor punishment for him as severe as that accorded Lord Lovat. Although Madison in the Constitutional Convention, and other great constitutional lawyers since, have warned of the dangers inherent in the trial of impeachment cases by political bodies ordinarily exercising legislative powers instead of courts regularly exercising judicial functions, the provisions of the Constitution, as they are, control.

These provisions do not give the president any recourse against those who sit in judgment in his case on any grounds of disqualification for prejudice or opinions formed or expressed. Nor do they protect him against public discussion of the issues on which he is being tried, regardless of how unjust, inflammatory or prejudicial they may be, or political pressure which may distort or thwart otherwise unbiased and unprejudiced judicial judgment.

A majority of the members of the Senate are members of the political party opposed to the president. They are not bound by any rules except those which they themselves control. They only have one precedent to follow for the impeachment trial of a president, and that is the Johnson impeachment of 1868. Should they follow the proceedings according to that precedent, the trial could be a national tragedy.

TRIAL TIME

The Senate could set the day for trial at a time considered to its political advantage. Following the precedent of the Johnson trial, the Senate could defeat the purpose of the president to make an adequate defense. Although the president has been represented by counsel in different proceedings already taken, he could well consider it to his advantage to have counsel he has not used before to represent him before the Senate.

When we consider the enormous amount of material that will be at the disposal of the managers of the House, any counsel would need weeks of time for the preparation of his defense.

The Senate trying the case could follow the example of the Senate which heard the Johnson impeachment. There counsel for the defense requested 40 days to prepare an answer to the articles. The Senate allowed him 10. After the pleadings were completed, counsel for the president asked 30 days time to prepare his defense. The Senate allowed him six days.

The managers of the prosecution could offer volumes of ex parte evidence which may not be admissible in the ordinary trial of a case. Chief Justice Burger could rule that such evidence is not admissible. The Senate is not bound by his ruling. By a majority vote of the members of the Senate, the ruling of the chief justice on admissibility or rejection of evidence could be set aside.

Considering the long preparation that has been made for prosecution of the president and the enormity of making whatever defense the president may have, the trial of the president before the Senate could well take weeks and months or even years.

Should we repeat the gross abuses that occurred during the impeachment trial of Andrew Johnson, the trial could add to the discredit of our political institutions already under grave siege. It is because of the dangers incident to a trial of this kind that led Jefferson to call the impeachment process the Scarecrow of the Constitution, Claude G. Bowers to term it the Great American Farce and Woodrow Wilson to refer to it as An Empty Menace.

And what would happen to the country if, while the trial is in progress, a world conflagration should arise like that of the attack on Pearl Harbor or a nuclear holocaust directed against us?

It is because of considerations like these that we revert to the question as to whether we should ever impeach a president.