Analyzing the legal experts' arguments for and against impeaching Trump

ABC News 1 week ago

Four legal scholars - Professors Noah Feldman of Harvard Law School, Pamela Karlan of Stanford Law School, Michael Gerhardt of the University of North Carolina School of Law and Jonathan Turley of George Washington University Law School -- each made passionate arguments before the House Judiciary Committee on Wednesday about whether President Donald Trump's conduct meets the Constitution's standard for impeachment: "Treason, Bribery and other high Crimes and Misdemeanors."

ABC News Senior Washington Reporter Devin Dwyer, along with ABC News contributors Katie Shaw and Dan Abrams, analyzed those arguments on both sides of the impeachment inquiry.

PHOTO: Professor Michael Gerhardt testifies as he sits among fellow witnesses Noah Feldman, Pamela Karlan and Jonathan Turley during a House Judiciary Committee hearing in Washington, Dec. 4, 2019.
Professor Michael Gerhardt testifies as he sits among fellow witnesses Noah Feldman, Pamela Karlan and Jonathan Turley during a House Judiciary Committee hearing in Washington, Dec. 4, 2019.

In her analysis, Shaw said that the witnesses spent the morning describing "the framers' worst nightmare."

For example, Karlan testified "the very idea that a president might seek the aid of a foreign government in his re-election campaign would have horrified [the Founders], but based on the evidentiary record, that is what President Trump has done."

"When they drafted these impeachment clauses in the Constitution, they were worried about foreign interference, corruption and self dealing, trying to entrench yourself in power, maybe interference in an election. They say, it's very rare you have all those things collide in a single sequence of events the way you have here," she said.

PHOTO: Constitutional law expert Stanford Law School professor Pamela Karlan testifies during a hearing before the House Judiciary Committee, Dec. 4, 2019, on Capitol Hill in Washington.
Constitutional law expert Stanford Law School professor Pamela Karlan testifies during a hearing before the House Judiciary Committee, Dec. 4, 2019, on Capitol Hill in Washington.

Of the experts going beyond an academic discussion to flatly state whether the Trump should -- or should not be -- impeached, she said: "They went further than I expected, both in the written statements and their testimonies, in suggesting something like a duty to move forward, not just the constitutional standards having been satisfied."

On that point, when Democratic Counsel Norm Eisen asked the witnesses from the outset: “Did President Trump commit impeachable high crime and misdemeanor of abuse of power based on that evidence and those findings?” Feldman, Karlan and Gerhardt all said yes.

PHOTO: Constitutional scholar Noah Feldman of Harvard University testifies before the House Judiciary Committee in the Longworth House Office Building on Capitol Hill, Dec. 4, 2019, in Washington.
Constitutional scholar Noah Feldman of Harvard University testifies before the House Judiciary Committee in the Longworth House Office Building on Capitol Hill, Dec. 4, 2019, in Washington.

“On the basis of the testimony and evidence before the House, President Trump has committed impeachable high crimes and misdemeanors by corruptly abusing the office of the presidency,” Feldman said, specifically citing Trump's request for Ukrainian President Voldymyr Zelenskiy to pursue investigations into the Bidens and purported Ukraine interference in the 2016 election.

"The record compiled this far shows that the president has committed several impeachable offenses,' Gerhardt agreed, "including bribery, abuse of power in soliciting a personal favor from a foreign leader to benefit himself personally, obstructing justice and obstructing Congress."

PHOTO: Jonathan Turley, professor of law at George Washington University Law School, testifies during a House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump on Capitol Hill in Washington, Dec. 4, 2019.
Jonathan Turley, professor of law at George Washington University Law School, testifies during a House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump on Capitol Hill in Washington, Dec. 4, 2019.

Turley, the sole witness called by Republicans, said no, saying that Democrats have not established evidence of a crime. Turley said that while Trump's actions may have been inappropriate, they are not impeachable. A bribery charge would especially be a stretch, he said.

"This isn't improvisational jazz. Close enough is not good enough. If you're going to accuse a president of bribery, you need to make it stick because you're trying to remove a duly elected president," Turley said.

But in her analysis, Shaw said that "it doesn't matter that much exactly what the Supreme Court said about the federal criminal statute because the world bribery was included in the Constitution before there were even any federal laws that targeted bribery, so it means something different," a point Karlan made in her testimony, as well.

Turley also raised questions about the timeline and process, arguing that Democrats are rushing to impeach the president without hearing from all witnesses or allowing the courts to adjudicate disputes between Congress and the White House.

"If you impeach a president, if you make a high crime and misdemeanor out of going to the courts, it is an abuse of power. It's your abuse of power. You're doing precisely what you are criticizing the president for doing. We have a third branch that deals with conflicts of the other two branches, and what comes out of there, and what you do with it is the very definition of legitimacy," Turley claimed.

Abrams, in his analysis, acknowledged that this may be the Republicans' strongest argument against an obstruction of justice charge -- that Democrats should let the courts weigh in.

"[Turley] concedes you don't need a crime to impeach, but he is saying there's never before been a case where there wasn't a crime included. He in essence if you look at everything he's saying, he's saying the standard needs to be higher for impeachment than Congress is applying here," Abrams said. "I think he was a very persuasive witness based on the facts and law that they have on that side."

Shaw agreed with her fellow legal contributor.

"[Turley's] not condoning any of the conduct that's alleged here. He says this shakedown, if proven, could well be impeachable. It's just that the facts aren't there yet, so the House should take his time," she said.

Abrams continued that, despite Republicans like Rep. Matt Gaetz dismissing the process as a joke as he told ABC News' Dwyer Wednesday morning, Turley does not take the process lightly.

"The bottom line is that while Turley does not think there's enough here to convict the president and to, you know, successfully impeach -- that doesn't mean that he thinks that this is ridiculous that this whole process is moving forward -- because he doesn't," Abrams said. "He even said the call wasn't perfect, you know, he said that straight-out. But that's a separate question from, is it enough to get impeachment and conviction."

Karlan argued that it doesn't matter whether Trump's act succeeded and Gerhardt pointed out how every president who has been impeached failed to achieve their goals.

“President Nixon was subject to articles of impeachment preferred by this committee for attempting to cover up the Watergate break-in. The fact that the president was not ultimately successful in covering up the break-in was not grounds for not impeaching him," Gerhardt said. "The attempt itself is the impeachable act."

Shaw said Gerhardt, in particular, put Democrats' closer to obstruction charges.

PHOTO: Michael Gerhardt, professor of law at University of North Carolina School of Law, testifies during a House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump in Washington, Dec. 4, 2019.
Michael Gerhardt, professor of law at University of North Carolina School of Law, testifies during a House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump in Washington, Dec. 4, 2019.

"Both Nadler in his opening and the witness testimony, in particular the Gerhardt testimony, makes clear that other presidents have resisted these requests, other presidents may have engaged in obstruction of Congress, but this president's level of obstruction is totally unprecedented," Shaw said. "To the extent that they seem to be interested in building a strong article around obstruction of Congress, you saw the seeds of that today."

"I think that there are a lot of questions about the substantive misconduct, and I think there will be certainly be at least one article around abuse of power, potentially bribery, but obstruction of Congress," Shaw continued. "Gerhardt says the obstruction here was worse even than Nixon, and there was an article approved alleging obstruction against Nixon."

Dwyer noted the view that judging the president might be better left to voters in the 2020 election -- and Feldman responding that the historical origins of impeachment were rooted in a fear a president might "corrupt the electoral process and ensure his re-election."

Dwyer said that while Republicans and Turley argued in favor of slowing down the impeachment process, Democrats and their witnesses argued the integrity of U.S. elections are at stake in the meantime.

He noted Karlan's testimony on that point. "She argued, time and again, that the election just one year from now is at risk of foreign interference. The president, she mentioned in her testimony, did it in 2016. Remember when he called out Russia, 'if you're listening get involved here.' Of course, the Russians were involved at the time. She alleged that he did it again with Ukraine, in this case, and she said the only way to stop that and reprimand him is impeachment," Dwyer said/

"Countless Americans have fought and died to protect our right to vote," Karlan said. "But the framers of our Constitution realized that elections alone could not guarantee that the U.S. would remain a republic. One of the key reasons for including an impeachment power was the risk that unscrupulous officials might try to rig the election process."

PHOTO: House Judiciary Chairman Jerrold Nadler sits during a House Judiciary Committee hearing on the impeachment of US President Donald Trump on Capitol Hill in Washington, Dec. 4, 2019.
House Judiciary Chairman Jerrold Nadler sits during a House Judiciary Committee hearing on the impeachment of US President Donald Trump on Capitol Hill in Washington, Dec. 4, 2019.

Nadler addressed the notion pushed by Republicans in his opening statement: "We are all aware that the next election is looming, but we cannot wait for the election to address the present crisis. The integrity of that election is one of the very things at stake," Nadler said. "The president has shown us his pattern of conduct. If we do not act to hold him in check now, President Trump will almost certainly try again to solicit interference in the election for his personal political gain."

Shaw drew on the witness testimonies in her analysis to illustrate that the framers allowed for impeachment as opposed to the view currently prevalent in public opinion that judgment on the president might be better left to voters.

"Feldman says [the framers] thought about just letting elections address presidential misconduct but decided that certain kinds of misconduct couldn't just be left to the political process. They needed something more serious to address them, and that's especially the case, as Karlan emphasized, when the misconduct that's alleged is tied to an election," Shaw said. "If manipulating the election is the charge, you can't just let the election run it's course."


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