Impeachment Briefing: Highlights From Legal Experts’ Testimony

The New York Times Politics 1 week ago

The House Judiciary Committee today held its first hearing of the impeachment investigation, questioning constitutional scholars on whether the elements of President Trump’s pressure campaign on Ukraine amount to impeachable offenses. Here’s a recap.

Who testified?

The hearing, which spanned over eight hours, featured four law professors: Noah Feldman of Harvard, Pamela Karlan of Stanford, Michael Gerhardt of the University of North Carolina and Jonathan Turley of George Washington University.

Mr. Feldman, Ms. Karlan and Mr. Gerhardt were called in by Democrats, while Mr. Turley was requested by Republicans.

Why did they testify?

As a first step, Democrats on the House Judiciary Committee hoped for outside experts to establish — in public and on the record — the language and conceptual framework for what could soon be articles of impeachment.

That meant lots of references to 18th-century historical figures and British case law, resulting in a much more technical, academic hearing than the dramatic testimony diplomats and White House officials delivered to the Intelligence Committee.

What were the highlights?

  • Three of the scholars argued resoundingly for impeachment, saying that Mr. Trump’s Ukraine dealings easily met the threshold that the framers set in the Constitution for impeachable offenses. “If what we are talking about is not impeachable, then nothing is impeachable,” Mr. Gerhardt said. Mr. Feldman said that “if we cannot impeach a president who abused his office for personal advantage, we no longer live in a democracy.”

  • Mr. Turley made the case that Democrats were rushing ahead without taking the time it requires to fully investigate the case: an “abbreviated period” that amounts to an “incomplete and inadequate record” for applying an ironclad set of constitutional standards. “This isn’t improvisational jazz — close enough is not good enough,” he said. (My colleague Peter Baker noted today that House Republicans actually moved faster to impeach Bill Clinton in 1998.)

  • Republicans immediately objected to the proceedings, interrupting Jerry Nadler, the chairman of the Judiciary Committee, and calling for their own hearings to question Representative Adam Schiff — the chairman of the House Intelligence Committee — and the whistle-blower.

What were those “high crimes,” exactly?

The hearing today turned in large part on the constitutional definitions of abuse of power, bribery and foreign interference, ideas that the framers considered the grist of any impeachable case. Here are some of the ways that the scholars used those terms to argue for and against impeaching Mr. Trump.

Abuse of power

  • Mr. Feldman said Mr. Trump’s withholding of military aid to Ukraine was critical to the definition of abuse of power, as it combined two central aspects: enriching himself and undercutting national security. “There’s nothing wrong with someone asking for a favor in the interest of the United States of America. The problem is for the president to use his office to solicit or demand a favor for his personal benefit,” he said of the July 25 call between Mr. Trump and Ukraine’s president. “That’s the definition of corruption under the Constitution.”

  • Mr. Gerhardt said that Mr. Trump’s pressure campaign and removal of the American ambassador to Ukraine was “an abuse of power that only the president can commit” — or, as Mr. Feldman put it, to “gain an advantage that is not available to anyone who is not the president.”

Bribery

  • Ms. Karlan said that Mr. Trump committed what the framers believed was bribery — regardless of whether he committed what the current federal criminal code establishes as bribery. “When you ask for private benefits in return for an official act, or somebody gave them to you to influence an official act, that was bribery,” she said.

  • Mr. Turley argued that “the language of the interpretation of federal courts” says that Mr. Trump did not commit real crimes, a point that a Republican staff lawyer said moved Mr. Trump’s actions into the category of “misdemeanors.” In his prepared opening statement, he wrote that though Mr. Trump’s references to the Bidens in his July 25 call were “highly inappropriate,” they did not constitute a “plausible case for bribery.”

Foreign interference

  • Ms. Karlan said the founders were “especially concerned” about foreign election meddling. Mr. Trump encouraging Ukraine to dig up dirt on Joe Biden, she said, showed his belief in the “propriety of foreign governments intervening” in elections. “Foreign governments don’t interfere in our elections to benefit us,” she said. “They intervene to benefit themselves.”

  • Mr. Turley cautioned lawmakers against an overly broad interpretation of what he called “betrayal of the national interest,” an offense he said Republicans would have likely accused former President Barack Obama of. “That’s exactly what James Madison warned you against,” he said. “You would create effectively a vote of no-confidence standard in our Constitution.”

How enthusiastic are Democrats about impeachment?

This morning, House Democrats held an unusual meeting without staff or cellphones to discuss the next phase of impeachment. “Are you ready?” Speaker Nancy Pelosi asked the group, which responded with a resounding yes. I asked my colleague Carl Hulse, a longtime Washington correspondent, why the meeting could be significant.

Carl, what was Ms. Pelosi’s message?

CARL: Substantively, Democrats want unity, but they also care about messaging: “We all agree on this, even our moderate members,” they want to be able to say. There’s been some speculation, certainly being pushed by Republicans, that there’s Democratic queasiness. Democrats want to tamp that down.

Representatives Jeff Van Drew and Collin Peterson, two moderate House Democrats who represent districts Mr. Trump won in 2016, already came out against impeachment in October. What happens if more do?

Any further break allows Republicans to say that Democrats are split. Even if it’s three or four more Democrats, that would really hurt the case, since it would allow Republicans to say that Democrats didn’t make the case, and that even some members who supported the inquiry in the first place have seen the evidence and now won’t vote to impeach, a version of which happened to Bill Clinton and House Democrats rallying against that impeachment vote.

Vice President Mike Pence held his own rally of sorts this morning with House Republicans. We’ve heard a lot in the past week from Republicans about Democrats increasingly losing faith in the impeachment case. What are they hoping to do at this point?

Republicans seem like they’re not going to have any division, so this morning’s meeting was even more of a pep rally than the one for Democrats was. Republicans are trying to speak a Democratic divide into existence by saying there’s a shift in public opinion. Maybe Democrats will get nervous, they think. They want to promote the idea that there are fissures coming, in the hopes that it will actually happen.

What’s next

  • The Judiciary Committee is expected to convene at least one more hearing before it begins drafting and debating articles of impeachment.

  • The committee will likely stage a formal presentation of evidence from Democratic and Republican staff lawyers for the Intelligence Committee on the conclusions of their investigation.

  • The panel could also hold another session to allow Mr. Trump’s lawyers to present a formal defense, including by calling witnesses. The White House has a Friday deadline to say whether it will participate.

What else we’re reading

  • Where’s Rudy Giuliani? The president’s personal lawyer has been in Budapest and Kyiv this week to talk with former Ukrainian prosecutors for a documentary series intended to debunk the impeachment case. Among them was Yuriy Lutsenko, who played a formative role in what became Mr. Trump’s Ukrainian pressure campaign.

  • After Mr. Turley argued that Democrats are making a mistake by moving swiftly to impeach, my colleague Charlie Savage examined whether Democrats have the option to wait.


The Impeachment Briefing is also available as a newsletter. Sign up here to get it in your inbox every weeknight.


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