Everyone forgets the third article of impeachment. The charge sheet against Richard Nixon, adopted by the House judiciary committee following the Watergate burglary and a conspiracy to impede its investigation, famously accused the president, first, of obstruction of justice and, second, of violating citizens’ constitutional rights. Thirteen days later, on August 9, 1974, and with impeachment all but certain, Nixon became the first president to resign the Oval Office.
What did for him as much as what could be heard on the Nixon tapes was his refusal to hand them over until forced to by the Supreme Court. This formed the basis of Article III of the indictment: that the president ‘failed without lawful cause or excuse to produce papers and things as directed’ and was ‘substituting his judgment as to what materials were necessary for the inquiry’. Not only was he delaying the progress of the congressional inquiry, Nixon was essentially usurping the committee’s power by trying to limit its evidence base to what he deemed appropriate.
On Tuesday, the chair of the Alex Salmond inquiry, the Holyrood panel examining the Scottish government’s handling of complaints against the former first minister, released a statement declaring her committee ‘completely frustrated with the lack of evidence and, quite frankly, obstruction it is experiencing’. Linda Fabiani, Holyrood’s deputy presiding officer, said her investigation ‘had hoped to be in a position to hear further oral evidence’ but ‘simply cannot proceed at this stage’ because there were ‘responses still outstanding’ from the SNP government, SNP chief executive Peter Murrell, and Salmond himself.
Fabiani announced that, without the evidence they require, the committee had ‘no choice but to meet in private again next week’ to review the evidence they do have. She closed with a plea for ‘all those we have approached to engage productively with the committee’. Fabiani, it is worth noting, is a sitting SNP MSP and former SNP government minister.
Fellow committee member, and Scottish Labour deputy leader, Jackie Baillie issued her own statement accusing ‘the Scottish Government and others’ of ‘treating this committee as a laughing stock’ and having ‘demonstrated contempt for this committee and its aims’.
However, Baillie went further than Fabiani, making a direct allegation against the SNP administration: ‘[T]hey are determined to prevent the committee from executing its vital task.’ Those 12 words change the terms of the debate entirely. They are, in effect, an Article III charge against the Scottish government.
They have also been a long time coming. The origins of the inquiry lie in a botched Scottish government investigation into harassment complaints against Alex Salmond dating back to his time as first minister. Salmond sought a judicial review of the investigative actions and Lord Pentland ruled they had been ‘unlawful in respect that they were procedurally unfair’ and ‘tainted with apparent bias’.
Sturgeon’s permanent secretary Leslie Evans accepted that the government’s investigating officer had had ‘interactions with the complainants in advance of the complaints being made’, though maintained there was ‘nothing to suggest’ the investigator ‘did not conduct their duties in an impartial way’. Evans resisted calls for her resignation and the Scottish taxpayer was left to foot a £500,000 legal bill.
The Holyrood inquiry was one of several established to get to the bottom of the saga and Sturgeon committed to Holyrood that ‘the government and I will cooperate fully’ and that it would ‘not be for me to decide what material the parliamentary inquiry, when it gets under way, wants to request’. Rather, she said:
‘The inquiries will be able to request whatever material they want, and I undertake today that we will provide whatever material they request.’
However, the Fabiani inquiry has been dogged by controversy from the start. The SNP drew criticism from opposition parties for insisting that the committee be headed by one of its own MSPs. When Evans appeared in August, she was asked by Conservative member Murdo Fraser about the claim that ‘female civil servants were advised not to be alone in the company of the former first minister’. Evans declined to comment and Fabiani ruled the question outside the committee’s remit. A cross-party group of committee members wrote to Fabiani to protest her ruling and the Scottish Conservatives reported Evans to the UK civil service, nominally still in charge of civil servants in Scotland.
When Evans was called back earlier this month, she was further asked whether ‘special advisers were involved in any part of the judicial review’ and replied that, while she couldn’t be certain, she was ‘not aware that that happened’. The next day, she wrote to the committee to clarify that ‘special advisers were involved in aspects of the Government’s work in relation to the judicial review’.
Rumbling in the background to all this is the separate fallout from the trial of Alex Salmond, who was cleared of 13 sexual misconduct charges in March. Two weeks ago, the Times claimed it had seen WhatsApp messages allegedly sent by SNP chief executive (and Nicola Sturgeon’s husband) Peter Murrell during the criminal investigation. The missives were alleged to say the police were ‘twiddling their thumbs’ and to suggest that it might be a ‘good time to be pressurising them’.
Another message allegedly read: ‘The more fronts he is having to firefight on the better for all complainers. So CPS action would be a good thing.’ Police Scotland has begun an inquiry into the disclosure; and Salmond ally and East Lothian MP Kenny MacAskill has asked why Murrell has not been suspended as chairman, something activists are reportedly plotting to get onto the agenda at the next SNP conference or meeting of the party’s national executive committee.
There is no suggestion at this stage that anyone has done anything unlawful or improper but there is a distinct odour in the air. Murdo Fraser accuses Sturgeon of having ‘misled parliament’ over the absence of requested materials and concludes that the Holyrood inquiry ‘will be a whitewash’. This goes beyond what, if anything, the first minister knew and when she knew it to more fundamental questions about how the apparatus of government functions in Scotland, to whom it is accountable, and whether there are sufficient checks and balances written into the devolution settlement.
The lingering odour is of a government that operates on its own terms and an assembly incapable of bringing it to book. If the Scottish parliament is to be able to investigate the actions of the Scottish government, it must be able to compel the government to produce papers and things as directed and the government must not be allowed to substitute its judgement as to what materials are necessary. What Richard Nixon might have given to face Holyrood rather than Congress.
Comments