PROPOSED ARTICLE ON CONCEALMENT OF INFORMATION ABOUT BOMBING OPERATIONS IN CAMBODIA

On July 30, 1974, the Committee considered a proposed Article of Impeachment dealing with the unauthorized bombing of Cambodia and the concealment from the Congress of that bombing:

In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, on and subsequent to March 17, 1969, authorized, ordered, and ratified the concealment from the Congress of the facts and the submission to the Congress of false and misleading statements concerning the existence, scope and nature of American bombing operations in Cambodia in derogation of the power of the Congress to declare war, to make appropriations and to raise and support armies, and by such conduct warrants impeachment and trial and removal from office.

The Committee, by a vote of 26-12, decided not to report the proposed Article to the House.

The article charged that the President had concealed the bombing in Cambodia from the Congress and that he had submitted, personally and through his aides, false and misleading statements to the Congress concerning that bombing. The investigation of those allegations centered upon the initial decision to bomb Cambodia; the type, scope, extent and nature of the bombing missions; the reporting and recording system used internally within the military and the Administration; and the statements made by Administration officials to Congress and to the public both during the military operation and after it had ceased.1

On February 11, 1969, the President received the initial request to institute the bombing from his military advisors. On March 17, 1969, after a series of National Security Council meetings, the President approved the request and directed that the operation be undertaken under tight security.

On March 18, 1969, the bombing of Cambodia commenced with B-52 strikes under the code name MENU OPERATION. These strikes continued until May 26, 1970, almost one month after the American incursion into Cambodia. The operational reports prepared after each mission stated that these strikes had taken place in South Vietnam rather than in Cambodia.

Between April 24 and May 24, 1970, American planes conducted tactical air strikes in Cambodia under the code name "regular" PATIO. No operational reports were made with respect to these

The detailed findings of the Inquiry Staff concerning the bombing of Cambodia are compiled in Book XI of the Statement of Information. The findings were based upon an examination of all available sources of material, including Congressional testimony, classified documents made available by Congressional Committees, and reports of public statements by the President, civilian and military officials of the Department of Defense, and State Department officials. Some classified documents were not made available to the Committee.

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strikes. Similarly, prior to June 30, 1970, an unspecified number of tactical air strikes occurred in various parts of Cambodia. Again no regular reports were prepared.

On May 14, 1970, a one day series of "special" PATIO sorties were conducted, operational reports stated that the strikes had occurred in Laos rather than Cambodia. The tactical air sorties with the code name "regular" FREEDOM DEAL were accurately reported as having occurred in Cambodia. A series of tactical air bombing missions in Cambodia called "special" FREEDOM DEAL occurred outside the boundaries designated for FREEDOM DEAL bombing, although the operational reports indicated otherwise.

On July 1, 1973, Congress enacted P.L. 93-50 and P.L. 93-52 providing for the cessation of all bombing in Cambodia by August 15, 1973. At that time the bombing had not been formally acknowledged by the President or his representatives.

Later, during the Senate Armed Services Committee hearings on the Cambodian bombing, military and Administration officials explained that the bombing was not publicized because of the delicate diplomatic and military situation in Southeast Asia prior to the American incursion into Cambodia. They stated that it was their understanding that Cambodia's ruler, Prince Sihanouk, had privately agreed to the bombing of Cambodia prior to his overthrow. It was further stated that certain Members of Congress had been informed of the military action and that this constituted sufficient notice to Congress of the President's military decision. Finally, the submission of false data to Congress was said to have resulted from the highly classified nature of the accurate bombing statistics.

The Committee considered the views of the supporters of this proposed Article of Impeachment that the President's conduct constituted ground for impeachment because the Constitution vests the power to make war in Congress and implicitly prohibits the Executive from waging an undeclared war. Stating that impeachment is a process for redefining the powers of the President, the supporters argued that the President, by issuing false and misleading statements, failed to provide Congress with complete and accurate information and thereby prevented Congress from responsibly exercising its powers to declare war, to raise and support armies, and to make appropriations. They stated that informing a few selected members of the Congress about the Cambodian bombing did not constitute the constitutionally required notice, particularly inasmuch as the President's contemporaneous public statements were contrary to the facts and the selected Members were committed to a course of action involving war that did not represent the views of a substantial portion of American citizens. The supporters also stated that Congress had not ratified the President's conduct through inaction or by its 1973 limitation on bombing because Congress did not know of the bombing until after it voted the authorization. Finally, they asserted that the technicalities or merits of the war in Southeast Asia, the acquiescence or protests of Prince Sihanouk, and the arguably similar conduct of past Presidents were irrelevant to the question of President Nixon's constitutional accountability in usurping Congress' war-making and appropriations powers.

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The Committee did not agree to the article for a variety of reasons. The two principal arguments in opposition to it were that Persident Nixon was performing his constitutional duty in ordering the bombing and that Congress had been given sufficient notice of the bombing. Several Members stated that the President as Commander-in-Chief was acting to protect American troops and that other Presidents had engaged in similar military activities without prior Congressional consent. Examining the bombing of Cambodia from the perspective of Congressional responsibility, the opponents of the Article concluded that, even if President Nixon usurped Congressional power, Congress shared the blame through acquiescence or ratification of his actions. They stated that the President had provided sufficient notice of the military actions to Congress by informing key Members. Finally, they said that the passage of the War Powers Resolution in 1973 mooted the question raised by the Article.

2 Representative Seiberling also stated that because of the President's decision not to declassify certain materials, such evidence could not be made public or be discussed during the Committee's debate. Representative Seiberling said that this prevented the public use of certain documents which tied the President into acts of concealment. He stated that this was one of the reasons he opposed the Article. The classified materials which were not publicly disclosed are listed on pages 122-23 of Book XI of the "Statement of Information." (HJC Debates, 7/30/74, TR. 1225-26).

PROPOSED ARTICLE ON EMOLUMENTS AND TAX

EVASION

On July 30, 1974, the Committee considered the following proposed Article:

In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of the President of the United States, and, to the best of his ability, preserve, protect and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, did receive emoluments from the United States in excess of the compensation provided by law pursuant to Article II, Section 1, of the Constitution, and did willfully attempt to evade the payment of a portion of Federal income taxes due and owing by him for the years 1969, 1970, 1971, and 1972, in that:

(1) He, during the period for which he has been elected President, unlawfully received compensation in the form of government expenditures at and on his privately-owned properties located in or near San Clemente, California, and Key Biscayne, Florida.

(2) He knowingly and fraudulently failed to report certain income and claimed deductions in the years 1969, 1970, 1971, and 1972 on his Federal income tax returns which were not authorized by law, including deductions for a gift of papers to the United States valued at approximately $576,000.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

After debate, by a vote of 26 to 12, the Committee decided not to report the Article to the House.

This Article was based upon allegations in two areas. The expenditure of federal funds on the President's privately-owned properties at San Clemente, California, and Key Biscayne, Florida, was alleged to constitute a violation of Article II, Section 1, Clause 7, of the Constitution. That clause reads, "The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them." The second allegation is that the President knowingly and fraudulently failed to report certain income and claimed certain improper deductions on his federal income tax returns.

A. EXPENDITURE OF FEDERAL FUNDS ON THE PRESIDENT'S PROPERTIES

Several investigations have been undertaken with regard to the amount and propriety of Federal expenditures at or near the President's properties in San Clemente, California and Key Biscayne, Florida. The House Committee on Government Operations found that a total of $17 million had been spent by the Federal Government in connection with the President's properties, including personnel costs, communication costs, and amounts expended on adjacent Federal facilities. (Book XII, 95) The staff of the Joint Committee on In

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ternal Revenue Taxation found that the President realized more than $92,000 in personal income from government expenditures on his properties in the years 1969 through 1972. (Book XII, 95) The Internal Revenue Service concluded that the President realized more than $67,000 in personal income from government expenditures on his properties in those years. (Book XII, 95)

The federal expenditures at San Clemente which were found to be primarily for the President's personal benefit included payments for such items as a sewer system, a heating system, a fireplace exhaust fan, enlargement of den windows, refurbishing or construction of outbuildings, paving, and boundary and structural surveys. (Book XII, 101) Expenditures brought into question at Key Biscayne included expenditures for such items as the reconstruction of a shuffleboard court and the building of a fence and hedge system. (Book XII, 157) The Government also made significant expenditures for landscape construction and maintenance on both properties. (Book XII, 101, 157)

The proponents of this section of the Article argued that the President, personally and through his agents, supervised the planning and execution of non-protective government expenditures at his private homes for his personal enrichment. The opponents maintained that a majority of the questionable expenditures were made pursuant to a Secret Service request, that there was no direct evidence of the President's awareness at the time of the expenditures that payment for these items were made out of public rather than personal funds, and that this section of the Article did not rise to the level of an impeach

able offense.

B. INTERNAL REVENUE CODE VIOLATIONS

In examining the President's income tax returns for the years 1969 through 1972, the Internal Revenue Service found that his reported income should have been increased by more than $230,000 and that deductions claimed in excess of $565,000 should be disallowed, for a total error in reported taxable income of more than $796,000. (Book X, 410-11) The staff of the Joint Committee on Internal Revenue Taxation determined that the President's improper deductions and unreported income for that period totaled more than $960,000. (Joint Committee Report, 7) Central to the tax section of the proposed Article was the charitable deduction claimed by the President for the years 1969-1972 for a gift of his private papers claimed to have been made to the Government in 1969 which was allegedly worth $576,000. (Book X, 348)

Both the IRS and the Joint Committee staff disallowed this deduction as not having been made on or before July 25, 1969, the last day on which a gift of such papers could entitle the donor to a tax deduction. (Joint Committee Report, 5; Book X, 410-11) While the papers allegedly donated were physically delivered to the National Archives on March 27, 1969, they were part of a larger mass of papers, and the selection of the papers given was not completed until March 27, 1970. (Book X, 11-12) The President's attorneys argued that in February 1969, the President told an aide that he wanted to make a