A constitutional what?

Is the United States in the midst of a constitutional crisis? Perhaps Potter Stewart should be our guide.

In 1964 the U.S. Supreme Court protected all speech other than “hard-core pornography” in one of a series of cases that saw the Court wrestling with definitions and constitutional limits regarding “adult” films and literature. In the 1964 decision, Jacobellis v. Ohio, Justice Potter Stewart, in his written concurring opinion, actually created a “hard-core pornography” standard, but at the same time refrained from defining that standard further “and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, . . .” That’s how I feel when asked whether we are in a constitutional crisis: I’ll know it when I see it.

First a little personal history. I served in the U.S. Army in Washington DC from 1972 to 1975. My duty station was the Army’s House of Representatives Liaison Office, located on the Basement Level of the Rayburn House Office Building, one floor below the House Judiciary Committee hearing room. My work in the Army Liaison Office had me in daily contact with almost every office in the House. Being that close to the pending action as the House moved toward impeachment in 1974 perhaps gave me an exaggerated view and perspective, but to my way of thinking that was a constitutional crisis, shaking the very foundations of our constitutional government and the balance of powers designed by the framers.

But was it a constitutional crisis for the millions of Americans throughout the land, a large majority of whom thought impeachment was a partisan ploy to undo Nixon’s landslide victory over McGovern in 1972? For those Americans it seemed to be a sideshow, something “those politicians in Washington” are always fighting about. And, besides, didn’t all politicians do the things Nixon was being accused of? The air of crisis in the hinterland lagged far beyond the Capital Beltway.

The constitutional crisis developed slowly in 1974, when “impeachment” was still called the “i-word” through the early months of the year, something to be avoided because “who knew what the consequences might be.” The seeds of the crisis were sown a year earlier when the Senate Select Committee on Presidential Campaign Activities, the “Watergate Committee” was formed to investigate the origins and players involved in the Watergate burglary of Democratic National Committee offices in June of 1972. The dramatic televised hearings, including testimony from former White House Counsel John Dean, riveted the nation when broadcast by the three national television networks without the cacophony of pundits and commentators we now have to dissect every word and phrase and tweet of public officials.

The sense of crisis grew with the testimony of White House aide Jack Butterfield about the existence of a voice activated taping system throughout the West Wing of the White house, taping the conversations of Nixon and his men. The existence of the tapes set off a year-long battle between the Special Counsel Leon Jaworski and the Nixon White House over a subpoena for the White House to turn over all the tapes in its possession, not just the edited transcripts offered by the Administration. Just as the House Judiciary Committee met to consider Articles of Impeachment, a unanimous Supreme Court rejected Nixon’s claim of absolute executive privilege and required the tapes to be turned over to Jaworski and, ultimately to the House. At that point I believe the sense of a constitutional crisis spread throughout the land.

The lessons of Watergate are instructive for the current situation in Washington, especially as it applies to the balance of powers between the three branches of the federal government. First, the Trump Administration is now claiming absolute executive privilege over numerous matters that are being investigated by House Committees, the Senate Intelligence Committee, and various federal and state courts. The precedent of U.S. v. Nixon suggests that this refusal will stand up in few, if any, of the twenty such matters now pending. Second, refusing to comply with lawful requests for information from Congress and disobeying subpoenas from the House can be grounds for impeachment. In fact, the Articles of Impeachment in the Nixon case, as well as the Bill Clinton case and the Andrew Johnson case all included Articles devoted to this very offense. Third, the House would be well advised to seek enforcement of its various subpoenas through the judicial branch. As slow as that can be, it will set the stage for the ultimate showdown. President Trump will clearly have the decision of whether to “self-impeach” himself by disobeying court orders, even perhaps a Supreme Court order. Then and only then might the push for impeachment start to become bipartisan.

Returning to our main question, are we now in a constitutional crisis? I don’t think so, but we are close to the verge of a crisis. While some believe the President wants to goad the House into impeaching him, believing that it will be good re-election politics for him, I don’t buy that theory. I believe as we’ve seen in his blustery “Art of the Deal” manner, Trump believes he can bluff the House out of impeaching him. I believe it more likely that he will try to use the courts and even the Supreme Court to “run out the clock” on all twenty of the current matters in which he is refusing to provide information, from his personal tax returns, to notes about his private conversations with Vladimir Putin, to records regarding his stoppage of FBI plans to relocate its headquarters out of Washington, to records of hush money payments made to an adult-film star, and many more.

I haven’t been in the Rayburn Building in several years now, but I have a feeling that if I were to walk through its corridors and past Room 2141, I might smell a whiff of crisis in the air, similar to the 1973 atmosphere when Howard Baker was famously asking “What did the President know and when did he know it” or when John Dean was testifying that he told President Nixon there was a cancer growing on the Presidency. These are still preliminary days and this constitutional collision may become a crisis, but that is not inevitable and we do have the institutions and the process to prevent this from becoming a crisis, if not a form of constitutional pornography. Potter Stewart and I will know it when we see it.

William Gilmartin of Orrtanna, a former Congressional staffer and Clinton Administration official, is a member of Gettysburg DFA.