What the Law Professors brought to the Trump impeachment hearings.


Nearly an hour and a half into Wednesday's impeachment hearings before the House Judiciary Committee, Norman Eisen, a counsel for the majority, drew the attention of the witnesses, all law-school professors, to an excerpt from the key findings of fact from the Trump-Ukraine impeachment-inquiry report that had been sent over by the House Intelligence Committee. It read, "Donald J. Trump . . . solicited the interference of a foreign government, Ukraine, in the 2020 U.S. presidential elections." Eisen asked, "Professor Feldman, did President Trump commit the impeachable high crime and misdemeanor of abuse of power based on that evidence and those findings?"

"Based on that evidence and those findings, the President did commit an impeachable abuse of office," Noah Feldman, who teaches at Harvard, replied.

"Professor Karlan, same question," Eisen said, addressing Pamela Karlan, of Stanford.

"Same answer," Karlan said.

"And Professor Gerhardt," Eisen asked, turning to Michael Gerhardt, of the University of North Carolina, "Did President Trump commit the impeachable high crime and misdemeanor of abuse of power?"

"We three are unanimous, yes." Gerhardt said.

Eisen did not pose the question to the fourth professor at the table, Jonathan Turley, who teaches at George Washington University and whose presence had been requested by the Republicans on the panel. His answer, judging from his other comments in the day-long hearings, would have been something on the lines of "I don't know," or "Not on the evidence in the report," or "Not yet." Eisen hardly addressed him at all, other than to ask him to confirm that Eisen was accurately quoting a line from a Wall Street Journalpiece that Turley had written, to the point that the Ukraine matter certainly looked like something that needed to be seriously investigated, and that impeachment did not necessarily require an offense under the criminal code. When Turley tried to add a caveat, Eisen cut him off. Not that Turley was silenced: the Republican counsel let him speak uninterrupted and at length. Everyone got to speak. They just didn't speak much to one another.

That lack of dialogue is one reason that Karlan's presence was so valuable. She is a scrapper: occasionally, on her own initiative, she reached back to address something that a Republican lawmaker had said, starting when she chided Representative Doug Collins, of Georgia, the ranking Republican on the committee, for asserting that she and the others couldn't possibly have familiarized themselves with all the evidence. She had read every transcript from the Intelligence Committee hearings, she said; in a later answer, she noted that she had spent so much time doing so over the Thanksgiving holiday that she'd ended up eating "a turkey that came to us in the mail that was already cooked." She got into some trouble when she said, by way of illustrating the difference between a king and a President, that Trump "can name his son Barron" but not make him a baron. That was unnecessary; granting titles of nobility is not the particular authoritarian pathology of this President, and there is, rightfully, sensitivity about deploying the name of a thirteen-year-old boy in a forum such as this one. Melania Trump tweeted angrily; Representative Matt Gaetz, of Florida, told Karlan that the comment "makes you look mean."

Later in the hearing, Karlan apologized, but at least she was willing to enter into the territory of taking risks, which is something that has been missing from these fairly controlled hearings. While answering a question from Representative David Cicilline, a Democrat of Rhode Island, Karlan returned to address another issue that Gaetz had raised, about her campaign contributions to Democrats. She noted that, as a citizen, she had a "constitutional right" to make such donations, for the same reason that there was a "constitutional duty" to prevent foreigners from putting money into American elections. "Those two things are two sides of the same coin."

This was, in many ways, Karlan's central argument: that the right of Americans citizens to take part in fair elections is threatened and robbed when the President cuts deals with other governments to engage in sham investigations. That matters at home; it also matters in terms of America's role in the world. "If we look hypocritical about this," Karlan said, "if we look like we're asking other countries to interfere in our election, if we look like we're asking other countries to engage in criminal investigations of our President's political opponents, then we're not doing our job of promoting our national interest in being that shining city on a hill"—the image of a settlement on the North American continent that John Winthrop envisioned, in 1630.

Wednesday's hearings, despite such moments, were not particularly shining. Although some Republicans apparently realized that their best move was to just stay out of Turley's way and let him strew doubts about the proceedings, others delved into the field of conspiracy. Gaetz wondered if "Maybe it's a different President we should be impeaching"—apparently referring to Barack Obama. (How he thought that would work, retrospectively, wasn't clear.) Representative Ken Buck, Republican of Colorado, fired an incomprehensible series of questions at Turley involving the nefarious dealings of past Presidents, such as, "How about when President Kennedy directed his brother to deport one of his mistresses as an East German spy? Would that qualify as impeachable conduct?" His point seemed to be that if, by the Democrats' standards, Trump is impeachable, then so was every one of his predecessors, "save President Harrison, who died thirty-two days after his Inauguration." Buck added, "Those of us in the swamp are doing the very best they can for the American people, but it's not pretty."

The idea that all Presidents behave terribly is an odd defense, particularly as it would seem to support the view that a line, finally, needs to be drawn. Also, most of the examples that Buck gave were secret in their day or remain unproved now (including the story about the East German spy). In contrast, the Ukraine story is right in front of us now. One point that Feldman, Gerhardt, and Karlan all made was that, if presented with clear evidence of Trump's misdeeds, Congress lets them slide, it will have enshrined swampiness as an ideal. "The boundaries will just evaporate," Gerhardt said.

Throughout the day, there were various attempts to confront both Turley and Representative Jerrold Nadler, of New York, the committee chair, with things that they had said two decades ago, in the context of Bill Clinton's impeachment. Gaetz also asked Feldman about comments that he had made over the past three years, in which he suggested that Trump might be impeachable for a whole range of actions, before becoming what he himself had called an "impeachment skeptic" in the wake of the Mueller report. "Do you believe you're outside of the political mainstream on the question of impeachment?" Gaetz asked. Feldman effectively rebutted that line of questioning by saying that the Ukraine evidence had changed his mind. Still, as strong and as illuminating as Feldman's responses often were, they were constructed like exam answers, and, at times, they were diminished by how tidy he made his conclusions seem. This is a messy situation.

Gerhardt offered an enriching historical perspective and constitutional exegesis, but he, and the others, were in a difficult position: their testimony would have been most useful at the end of the process, and it's not clear that we're there. For one thing, the Judiciary Committee is holding another hearing, on Monday, to publicly discuss the Intelligence Committee findings. There is a great deal of evidence that seems overwhelming—Trump's July 25th phone call alone is damning—and yet it has, so far, apparently failed to persuade more than half of the country. That matters. Gaetz may not be reachable, but swing voters in states such as Michigan and Wisconsin may be. Turley made a reasonable point about how much more might still be learned. The Democrats had a reasonable reply in ascribing that state of incompletion to the White House's stonewalling; but there is a whole raft of lawsuits underway on that issue which are beginning to yield defeats for the President.

As much as the Democrats might see the benefit in getting the whole business quickly through the House and on to the Senate, doing so would mean, in a sense, abandoning the goal of achieving anything more than an impeachment with all the Democrats on one side and all the Republicans on the other. That may not be their fault—where Trump is concerned, the Republican Party has taken leave of its senses—but it's their battle to fight. Will they give it more of a try, with one more Karlan-like jump into the fray? On Thursday morning, Nancy Pelosi said that it was time to draft articles of impeachment.

Amy Davidson Sporkin, New Yorker, December 5, 2019

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December 5, 2019

Voices4America Post Script. Today was an important day. Pelosi said it was time to draft articles of Impeachment. It is time. Yesterday, we learned more about why this is true and why we have to do this. This article provides a clear overview. #ImpeachRemove


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