Forty-six years ago, on Feb. 5, 1973 in Washington, Sen. Sam J. Ervin (D-N.C.) handed a resolution to the clerk of the Senate. The resolution was to “to establish a select committee of the Senate to conduct an investigation and study of the extent, if any, to which illegal, improper, or unethical activities were engaged in by any persons, acting individually or in combination with others, in the presidential election of 1972, or any campaign, canvass, or other activity related to it.” The presidential election referred to was, of course, the re-election of Richard M. Nixon.
Two days later, Ervin’s resolution passed the Senate 77-0 with many Republican abstentions. Thus was born Senate Resolution 60 of the 93rd Congress. The committee that the resolution called for — the Senate Select Committee on Presidential Campaign Activities, informally known as the “Senate Watergate Committee” — was formed shortly thereafter.
{mosads}Thus was the beginning of the end of Nixon’s presidency, culminating in a constitutional crisis stemming from the criminal actions of a president who had operated in the White House with reckless disregard both for the law and for the sanctity of the office he occupied.
America watched as disclosure after disclosure of the activities of Nixon and “all the president’s men” played out in living color on the nation’s television screens. A procession of miscreants associated with the president was called on the carpet by the Committee, each of them either seeking the protection of the Fifth Amendment or fessing-up to both their own wrongdoing and the wrongdoing of others.
Today we face a president who seemingly has disdain for the law as it applies to him.
What are we to do?
Sunlight, Justice Brandeis once said, is the best disinfectant. Just as the Senate Watergate Committee hearings shed light and prepared the country to move to impeach a president, it seems that we must also hold public proceedings today to begin the process of ridding our White House and presidency of Donald J. Trump.
This time, however, it will not be the Senate that is able to form a special investigative organ to sort out the many threads of crime, corruption and calumny that have attended Trump’s activities while he has campaigned for, then occupied, the office. It must be the House of Representatives, with its new Democratic majority, that steps to the plate.
To propose that the House form a select committee is admittedly a somewhat unorthodox prescription. The already existent House Judiciary Committee, after all, is where bills of impeachment are brought. The House Oversight and Reform Committee tried to have Trump consigliere and convict, Michael Cohen, testify before it voluntarily before the latter was threatened by the president — and is now likely to compel Cohen’s appearance.
And the House Intelligence Committee will hear from Cohen next week, albeit behind closed doors. The same committee will also undoubtedly dig deep into Trump’s relations with foreign malefactors.
Why, then, a select committee? Why not just wait for the aforementioned committees to investigate Trump — and for Special Counsel Robert Mueller to render his report?
There are at least five reasons:
1. There is no current consensus in Congress to pursue Trump’s impeachment, since there is as yet no apparent possibility of conviction in the Senate.
2. A full twenty-one Republican senators would have to reconsider their present attitudes to convict Trump even once impeached, and they as yet have no political cover that can enable them to do so.
3. While only 39.8 percent of Americans say they approve of President Trump, according to FiveThirtyEight, only 40 percent told the Washington Post-ABC News that they currently support beginning the impeachment process.
4. Mueller’s report will not only be limited to the narrow subject of Russian interference in the 2016 election, but also is apt to be caught up in challenges over executive privilege and other obstructive actions rooted in the unfortunate fact that Mueller works in the executive branch of government.
5. this nation needs a forum in which to air its wounds publicly, so as to heal both completely and with finality. It must be enabled to investigate the Trump administration’s entire malignancy, by questioning all those with anything to add to our collective knowledge of the facts. And it must be able to do this without the dilutive and distracting efforts of multiple committee investigations spread over months or even years.
The Trump presidency must be debated in a fully transparent and orderly manner — with all of the awesome and co-equal powers of one of our two legislative bodies brought to bear for the benefit of the country. House Democrats should move immediately to impanel a committee of two dozen members (13 Democrats and 11 Republicans, reflecting the current balance of the House), with a strong and vibrant chairperson and top-notch counsel. Then it must proceed with all deliberate speed to the process of showing how great our nation really is — so great that it’s able to excise its own tumors and heal its own wounds.
If the Democratic leadership of the House is feeling timid, all they need to do is remember the words of the late Senator Ervin at the Watergate hearings, so very poignant in this month of recent Trump shutdown: “The people of this land are entitled to know the truth without further delay and are entitled to have their government resume its operations in a manner to promote their interest.”
Robert C. Hockett is the Edward Cornell professor of law at Cornell Law School. Daniel Alpert is an adjunct professor at Cornell Law School, a senior fellow at its Jack G. Clarke Business Law Institute and an investment banker in New York City.