Why Reagan was not impeached

In the aftermath of Watergate and Vietnam, Congressional investigations uncovered the largely unknown activities of the CIA and other agencies, which included arming and interfering in the domestic politics of regimes in both Central America and Iran. These programmes had also involved supporting reactionary regimes in ways that some saw as drawing the United States into conflicts, like Vietnam, without public knowledge or consent. In 1987, it was revealed that the Reagan administration had operated a clandestine policy in Nicaragua that evaded the restrictions placed upon the executive by the Boland Amendment in terms of aid given to the Nicaraguan Contras and that National Security Council (NSC) staff had lied to Congress and concealed these illegal actions. They had solicited funds from foreign allies and smuggled arms to the Contra insurgents in support of their efforts to topple the Sandinista regime. Contrary to the Arms Export Control Act and to its own publicly stated policy, the administration had also sold arms, particularly missiles, to Iran, which had been branded a sponsor of international terrorism since the Iranian revolution, and which was currently at war with its neighbour, Iraq. Such deals had formed part of ‘arms for hostages’ negotiations that were also contrary to official policy. Finally, it was disclosed that profits from the arms sales had been diverted to fund the Contras and hence to evade Congressional restrictions on funding. This article explores why these illegal actions did not result in President Reagan’s impeachment. It considers the merits of the administration’s claims that this was a ‘rogue operation’ by zealots within the NSC, and the success of its efforts to present Reagan as eager to cooperate with efforts to discover the truth of what had happened. It reviews the interactions between the Tower Commission, Congressional investigations and Office of Independent Counsel probe (Lawrence Walsh) and shows how these contributed to Reagan’s ‘escape’ from impeachment. It reviews the argument that Reagan’s underlying health problems contributed to his lax management of NSC operations and it considers the importance of televised testimony, particularly that of Oliver North, in shaping public opinion in the administration’s favour. Finally, it considers how this significant episode in 1980s politics foreshadowed major trends in US politics that can be seen as culminating in the present, acute partisan divide, Donald Trump’s double impeachment, and a manifest decline in public trust and respect for American political institutions.

Prosecuting Executive Branch Wrongdoing

Attorney General William Barr’s handling of Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr’s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy. Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To further this critical objective, an investigative and prosecutorial structure must be implemented that grants a prosecutor sufficient latitude to pursue independent investigations while reigning in the exercise of runaway discretion. Indeed, at no time since Watergate has there been such a clear need for reform. This Article will explain why many of the controversies that beset the Mueller investigation can be sourced to the Special Counsel regulations—the rules that governed his appointment, as well as his investigative and prosecutorial authority. And it will explain why many of these ills can be ameliorated by enacting a modified and innovative version of the expired Independent Counsel Statute.

The Clinton Scandals

The Clinton scandals have settled in the annals of American political history in the context of the era’s recurrent presidential misbehavior. Viewed through a historical lens, the activities, investigation, and impeachment trial of the forty-second president are almost inevitably measured against the weight of Watergate and Iran-Contra. As a result, the actions and consequences of this high-profile moment in the late-20th-century political history of the United States arguably took on a weightier meaning than it might otherwise have. If Watergate tested the U.S. constitutional system to its limits and Iran-Contra was arguably as grave, the Clinton affair was crisis-light by comparison. Originating with an investigation into a failed 1970s Arkansas land deal by Bill Clinton and his wife, the saga developed to include such meandering subplots as Filegate, Travelgate, Troopergate, the death of White House counsel Vince Foster, and, most infamously, the president’s affair with a White House intern. Unlike Richard Nixon and Ronald Reagan, even Bill Clinton’s most ardent critics could not find a national security threat among the myriad scandals linked to his name. By the time that Justice Department appointee Robert Fiske was replaced as prosecutor by the infinitely more zealous Kenneth Starr, the case had become synonymous with the culture wars that permeated 1990s American society. As the Whitewater and related tentacles of the investigation failed to result in any meaningfully negative impact on the president, it was his marital infidelities that came closest to unseating him. Pursued with vigor by the Independent Counsel, his supporters remained loyal as his detractors spotted political opportunity via his lapses in judgment. Certain key factors made the Clinton scandal particular to its era. First, in an unprecedented development, the personal indiscretion aspect of the story broke via the Internet. In addition, had the Independent Counsel legislation not been renewed, prosecutor Fiske would likely have wrapped up his investigation in a timely fashion with no intention of pursuing an impeachment path. And, the relentless cable news cycle and increasingly febrile partisan atmosphere of the decade ensured that the nation remained as focused as it was divided on the topic.

The World Watergate Made

In the aftermath of Richard Nixon’s resignation, public confidence in politicians and government institutions cratered. To address this crisis, Congress passed the Ethics in Government Act of 1978. The law’s most important provision created a new, more powerful type of special prosecutor, called the Independent Counsel. The direct result was President Bill Clinton’s impeachment for perjury and obstruction of justice concerning a consensual sexual relationship with White House intern Monica Lewinsky. At the end of this long and sordid saga, most legal experts—and most Americans—concluded that an unchecked special prosecutor was a cure worse than the disease. In the end, Congress allowed the Independent Counsel statute to die a quiet and unmourned death. Two decades later, this era is widely understood to illustrate an essential lesson: Politics is just as important a check on special prosecutors as it is on presidents.

Who May Remove or Discipline Federal Judges? A Constitutional Analysis

This article examines two issues regarding the Constitution’s Impeachment Clause and the federal judiciary: first, is impeachment the sole permissible mechanism for judicial removal? Second, who, if anyone is authorized to discipline federal judges through sanctions short of removal? This article argues that a form of “strict originalism,” that is, the attempt to discern the Constitution’s resolution of particular issues according to the founders’ expectations regarding those very issues—makes sense with respect to political mechanisms for judicial discipline and removal. Political mechanisms are those which can by fully initiated and implemented by the elected branches of the federal government without the involvement of the judiciary. However, employing “neoclassical” constitutional interpretation—examining general values revealed by the founders’ debates about the Constitution as a whole rather than highly specific original understandings of particular questions—demonstrates that (1) federal judges may also be disciplined through judicially enforceable civil and criminal sanctions imposed through executive or independent counsel prosecution, and (2) the federal judiciary, subject to congressional regulation, may exercise powers of self-regulation for judges not sitting on the Supreme Court.

Coming to Grips with the Ethical Challenges for Capital Post-Conviction Representation Posed by Martinez v. Ryan

68 Florida Law Review 765-818 (2016)In its groundbreaking decision in Martinez v. Ryan, 556 U.S. 1 (2012), the Supreme Court of the United States held that inadequate assistance of post-conviction counsel could be sufficient “cause” to excuse a procedural default thus allowing a federal court in habeas corpus proceedings to reach the merits of an otherwise barred claim that an inmate was deprived of his Sixth Amendment right to the effective assistance of counsel at trial. The upshot of Martinez is that, if state post-conviction counsel unreasonably (and prejudicially) fails to raise a viable claim of ineffective assistance of trial counsel, then there is “cause” (and likely also prejudice), and thus a gateway to merits’ review of the claim in federal habeas corpus proceedings. This is potentially a good thing for many habeas petitioners, but creates a serious and as-yet unappreciated ethical problem for federal habeas counsel who also served as state post-conviction counsel. In capital post-conviction cases, the pre-Martinez preference and practice was for continuity of counsel from state to federal court. Now that ineffective representation in state post-conviction proceedings can serve as a basis for review of otherwise defaulted claims, however, a lawyer may be materially limited in her ability to provide ongoing representation by the client’s interest in asserting an ineffectiveness claim.Lawyers who practice in the area of civil litigation or transactional representation are familiar with these “prior work” conflicts and the solution to them, which is to obtain the informed consent of the affected client after full disclosure of the facts giving rise to the conflict and the available alternatives. In the capital habeas context, however, the usual apparatus of professional responsibility law, including the informed consent doctrine and the potential of malpractice liability for mis-handling a conflict, are ill-suited to dealing with the problem thrust upon petitioners’ counsel by Martinez. Ironically, even though the tort doctrine of malpractice and the rules of professional conduct are both intended to protect clients, the rules allow the possibly negligent lawyer to decide whether client protection requires disclosure and consent, or possibly withdrawal from representation. Given the significance of ineffective assistance of counsel in capital cases, however, this kind of self-monitoring would be intolerable. Hence, the puzzle presented by Martinez, which recognizes the inability of lawyers to self-monitor, but fails to provide a mechanism for ensuring that the client’s rights are adequately protected.We suggest, therefore, that petitioners’ counsel cannot bear the sole responsibility for solving the Martinez dilemma. The other systemic and repeat players – States’ attorneys and judges – also have to do their part. After all, it is the invocation of procedural defenses in an effort to preclude merits’ review of the habeas petitioner’s federal constitutional claims that creates the procedural morass we have described. This in turn leads to both inefficient litigation and unjust results. Thus, in most instances, if attorneys for the state agreed – either on their own or after being “leaned on” by the court – waived procedural default and allowed the court to proceed to the merits, litigation would proceed expeditiously and without the ethical taint of potential and actual conflicts of interest. If the claims are not bona fide, they will be rejected. On the other hand, if the issues not previously raised are in fact meritorious, then there are no true “losers” unless you are of the view that death sentences resulting from a trial infected with prejudicial constitutional error should be carried out. Without some cooperative solution, courts will be faced with motions for substitution of counsel or the appointment of independent counsel to evaluate the performance of state post-conviction counsel; state attorneys general will have to deal with the possibility of further delay while the conflict issue is adjudicated. Thus, our tentatively hopeful conclusion to this exploration of the conundrum of Martinez is that the institutional actors with a stake in procedures and outcomes will work together to create an avenue for credible claims of inadequate state post-conviction representation to be investigated competently, for clients to be fully informed and involved in the decision-making process, and ultimately the client’s wishes respected.