“Democrats are intent on impeaching President Trump for something. It really doesn’t matter to them what it is,” says Heritage Foundation legal scholar Tom Jipping. He joins the podcast to explain why lawyers, not lawmakers, are doing much of the questioning; what’s next for the impeachment process; and what the main takeaways are from the hearing Wednesday. Read the lightly edited transcript of the interview, posted below, or listen on the podcast:
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- House Speaker Nancy Pelosi suggests President Donald Trump’s actions are worse than former President Richard Nixon’s offenses.
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- Pop star Ellie Goulding has backed down after demanding Salvation Army donate to an LGBT group.
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Daniel Davis: Thomas Jipping joins me now in the studio to unpack the impeachment hearings. He’s a senior legal fellow here at The Heritage Foundation. Tom, thanks for your time.
Thomas Jipping: Thanks for having me.
Davis: The House Intelligence Committee so far has heard from two witnesses: Ambassador Bill Taylor and George Kent, who’s a career diplomat. Both of them say they heard suspicious things about President [Donald] Trump’s dealings with Ukraine. Did we actually learn anything from their testimonies?
Jipping: Well, we learned that they heard things. There was an exchange with a Republican member trying to pin down just what the witnesses knew, and it turns out just what they know is that they heard things from other people. They don’t have any firsthand knowledge of the events that we’re all focusing on, such as the phone call between President Trump and [Ukrainian] President Volodymyr Zelenskyy.
They obviously know a lot about Ukraine, the relationship between our two countries, kind of how diplomacy’s done. But as far as the specific events detailed in the whistleblower complaint that really we’re all concerned about, they don’t have any direct knowledge at all.
Davis: So, this doesn’t really prove at all what Democrats are framing it to prove. I mean, what are the takeaways then?
Jipping: Well, one takeaway is it kind of affirms what I think more and more people are feeling about this process, which is Democrats are intent on impeaching President Trump for something. It really doesn’t matter to them what it is.
… Of course, after the Intelligence Committee has its hearings, the Judiciary Committee will take over, and it’s the Judiciary Committee that will actually draw up articles of impeachment. If those were blank pieces of paper, the House would still vote to impeach President Trump.
From that perspective, yesterday’s hearing, the hearings that are going to yet take place are kind of irrelevant. I mean, it almost doesn’t matter what is said. The fix is in, and House Democrats have decided they’re going to impeach President Trump.
Davis: One thing I thought was a little odd was that both the Republicans and the Democrats [used] lawyers to ask some of their questions. What was that about?
Jipping: I don’t think that’s unusual in a setting like that. Members on both sides are a pretty mixed bag. There’s a reason, for example, during the Brett Kavanaugh confirmation hearing that they brought in a prosecutor to ask questions with regard to the allegations against him.
I think when you have a narrower, more focused area to explore, the skills that lawyers have can come in handy, and so I thought, actually, that was a pretty good choice. It’s a large committee, and the members on both sides come in some different varieties. … I think the public benefited more from the lawyers asking the questions than if the members had.
Davis: You mentioned that the fix is in for the president. Something that struck me throughout this whole process is, we all have the same facts available to us and we can all read the transcripts that are available. We can all listen to the testimony and yet, we’re drawing completely different conclusions based on those things.
When you look at the transcripts that are available and listen to the testimony … you’ve already kind of alluded to this, but is there enough evidence to conclude that President Trump did pressure Ukraine to launch these investigations potentially into the Bidens?
Jipping: Well, I wouldn’t agree that we all have the same information. This has been one of the problems with this process.
The public only has information that the Intelligence Committee chairman, Adam Schiff, chooses to let us know. And remember that hearings up until this point had been in six different committees, secret. So we don’t know what was done in those committees, what was discussed. We have some deposition transcripts, but again, only those that Adam Schiff has chosen to disclose or to leak or whatever.
I think that’s a big problem because even if there was complete information and we all had exactly the same stuff on the table, it would still be what you referred to, which is we’d be looking at it differently. But we don’t know if we have good information or not, and that’s not a good way to run something as important as an impeachment process.
Davis: Right. And Republicans are saying that these two witnesses, Bill Taylor and George Kent, got their information from second-hand, third-hand, maybe fourth-hand sources. It’s just hearsay. So, there’s really no reliable evidence. But doesn’t that just mean that we need to maybe have some kind of investigation to actually figure out what happened? I mean, the Democrats are saying—
Jipping: The Democrats would say that that’s what we’re doing. We are having an investigation. Six different committees that are investigating.
I think one thing that we do need is for the whistleblower to testify. Because again, the Constitution gives the House the sole power of impeachment, which means at the end of the day, the Judiciary Committee could draw up articles of impeachment about anything.
We anticipate that it will be about these specific events, about the phone call. There is that memo about the phone call that the public’s been able to see. And then there’s the whistleblower complaint. That’s the thing that got this whole ball rolling.
It didn’t appear from that complaint that the whistleblower had first-hand information or knowledge either, but that’s the document filed by that person that really set all of this in motion. So I think it’s perfectly fair, and I think necessary, for that person to come before the committee and to answer questions from both sides.
I mean, if your goal is to find out as much of the truth as you can with respect to this question of impeachable offenses, that’s the kind of thing that you do. That’s not mysterious. That’s not something only lawyers can figure out. I mean, that’s just common sense.
Davis: Yeah, it seems like the Democrats almost want to have their cake and eat it. Right? They want the claim from the whistleblower to be lodged against the president, but they don’t want the whistleblower to be verified as a person.
Jipping: That’s correct. They have scripted a narrative about this impeachment. They’ve framed it a certain way. You’ll see that they don’t use the phrase “quid pro quo” really anymore. They don’t talk about bribery and extortion, and those kinds of really dramatic words.
Maybe they focus grouped it or something, but they have a narrative that they’ve scripted and they’re going to do the things that promote that narrative, and they’re going to try to avoid the things that take away from that narrative.
This is not a search for the truth. It’s not an inquiry in that sort of generic sense. This is a process, kind of a check-the-box process to get to what we all know is going to be the end result, and that’s impeachment.
Davis: Well, Democrats are saying that the whistleblower has got to be protected because this is a key check that we have against corruption within the federal government. People have to be able to come forward and know that they’ll be protected.
Jipping: The Whistleblower Protection Act, which is the federal law that provides a process for government workers to get information to Congress about things, that’s for situations like they’re misspending money in my agency or something like that. That’s the sort of ordinary way that that’s produced, and you want to protect people’s identity because otherwise they might not be willing to kind of step forward about things like that. T
his is different than anything like that. This is so radically different from any situation that probably will ever happen again that those ordinary ways of looking at it don’t apply. This is a completely different situation.
And besides, as we’ve written about here and in The Daily Signal, the whistleblower broke the law and went to Adam Schiff’s staff before he filed his complaint with the inspector general of the Intelligence Community. The law requires them to go to the inspector general as a buffer, as a check, and instead, the whistleblower went to to Chairman Schiff’s staff first.
So, the whistleblower himself isn’t following the law. That’s only one of a dozen ways that this is different than any other sort of normal situation.
Davis: Some voices, even some Republicans in Congress, have been saying that if Trump did ask Ukraine to open this investigation into corruption and potentially the Bidens, it could be legal or illegal depending on what his intent was. I want to ask you about that. Is there anything in the law that says the president’s intent would be decisive?
Jipping: I’m not sure what law they’re referring to when they say that it might be illegal. That this isn’t about whether laws have been broken. This is about whether the president abused his power and ought to be removed through impeachment. We shouldn’t lose sight of that. That’s what this is all about.
Davis: Can you explain that distinction?
Jipping: Well, a president’s actions can be impeachable but not be criminal. A president doesn’t have to commit a crime in order to be removed from office through impeachment.
In fact, one of the purposes of the impeachment process is a way to address a public official’s misconduct that might well not be criminal and couldn’t be addressed by the criminal law. It has to do with a president who’s so broken faith with the people, who has so committed offenses against our political system that he has to be removed now. But those actions don’t have to be criminal at all.
Davis: That sounds a bit more subjective.
Jipping: Sure it is.
Davis: Like Congress can just decide what its own criteria are to impeach the president.
Jipping: What they ought to do is take the concept of impeachment. I mean, when America’s Founders put impeachment into our Constitution, it had been used for 200 or 300 years in England. It’s been around for a long time.
We understand what the concept is. In the particulars, that’s where the details are. But we know what the concept is, and by the way, that does not include simply using impeachment as a weapon against your political opponents, which is what Democrats are doing with the president. But then it has to be implemented in an individual case. I’m just saying it doesn’t matter whether what the president may or may not have done is criminal. It can still be impeachable, and that’s what we have to focus on.
Davis: If evidence did come forward showing that President Trump did pressure Ukraine to investigate corruption, which may have been tied to the Bidens, would that be impeachable or is that a legitimate thing for a president to ask for?
Jipping: Well, just the way that you described it, without more, I would expect a president in a relationship with another country to which we’re giving hundreds of millions of dollars a year to want that country to work on what is a demonstrated history of corruption. I mean, that was brought out at the hearing in the Intelligence Committee. Just that by itself, that’s just normal interaction with another country.
Davis: Right. But what if the president actually cherry-picked Ukraine because he knew that the Bidens had some dirt there, and if he asked Ukraine to do a broad investigation, the Bidens would get swept into that?
Jipping: I think you’d have to do two things. No. 1, you’d have to really make the case that the president wouldn’t be asking Ukraine to address their corruption problem were it not for a connection to the Bidens.
Ukraine has been corrupt for many years. Again, at the Intelligence Committee hearing, the witnesses talked about not only the corruption that had long been a plaguing problem in Ukraine, but how the very company that [former Vice President] Joe Biden’s son was involved with was part of that corruption. OK? That’s a clear record.
And then you’d have to show that there was some specific connection that, “I’m asking you to do that because I want you to investigate Joe Biden, because I want that investigation to help me under my reelection.”
Davis: Which the transcripts don’t really reflect.
Jipping: Of course not, but that’s really what you’d have to argue.
Davis: And so much of the interpretation has just been reading between the lines there.
Jipping: Well, the public has that memo about the July 25 phone call now, and you could give it to 10 people, and they’d have 14 different versions of what it really says or means. I mean, you can read it legitimately in different ways, and you got to go with the information that we have. We can’t read people’s minds.
You can say, “Well, I just think that … ” That’s not a basis to remove a president. What it comes down to is, should we remove a president from office over things that he said that can be understood in different ways by reasonable people? I mean, I think the answer to that is obvious.
In our system of government, we handle things like that through elections. Frankly, I wish the American people, and maybe they are and it’s not being reported, but I wish or I hope the American people get a little bit, perhaps, resentful that Congress is, or at least the Democrats in Congress, are trying to take their choice away from them.
After all, we have an election in less than a year central to our system of governance, the people’s participation in choosing their own leaders, and impeachment short circuits that. Impeachment takes that away from the American people.
I mean, Bill Clinton and even Richard Nixon, they’d already been reelected, right? So, it wasn’t a matter of the people could pass judgment at the next election on what they did, because they were going to be out of office anyway. But that’s not the case now. And frankly, I think the American people ought to take that a little bit more seriously that this will take away from them the choice of who they want to have as their leader.
Davis: Yeah. Well, let’s just say for the sake of argument that it was proven that President Trump did extort or bribe the Ukrainians. Is that something that should be impeached while Trump is in office, or prosecuted after he leaves office?
Jipping: Well, the Constitution limits the consequences of impeachment and conviction because we can’t forget, impeachment doesn’t remove someone from office. Impeachment is an indictment. The Senate would have to hold a trial, and it takes two-thirds in the Senate to convict. Conviction automatically means removal from office. [I] lost my train of thought—what was the question you asked me?
Davis: If these allegations were true—
Jippng: Oh, right, I’m sorry. Well, the Constitution limits the consequence of conviction to removal from office and possibly in a separate vote, disqualification from holding any other federal office. But the Constitution explicitly says that that doesn’t affect the criminal justice system’s treatment of someone if what they did was in fact criminal. So, a public official who’s removed through impeachment could very well be prosecuted later if what they did violated the criminal law.
Davis: House Republicans this week have been describing this impeachment process as a media spectacle and a circus, and it’s kind of similar to the way Democrats described the impeachment of Clinton in the ’90s. Are you concerned about what all of this might do to impeachment as a constitutional power?
Jipping: Absolutely. When you have a process of government … provided for by the Constitution, and impeachment is there for a reason, when it is morphed into something else, when it’s used in a sense for not its intended use, there really isn’t any way to put that genie back in the bottle. Right?
I mean, we have to have consensus on how our government is supposed to work, and then we can have disputes and conflicts over policies or whatever. But if the way the government works, the process of government itself is sort of torn apart and twisted up and this kind of thing, then I don’t know that that can be put back in order, and that’s the whole ballgame.
So, I think this is a very serious matter in its impact on our system of government. I realized that that’s kind of an academic subject, and people’s eyes glaze over pretty quickly. But you know that we fought a revolution over a system of government. Our rights depend upon a system of government, and I think that’s one of the the legacies of all of this that is not going to be good for our country.
Davis: Well, the next hearing is set for Friday, and the witness will be Marie Yovanovitch, who served as ambassador to Ukraine up until May of this year. What should we expect to hear from her?
Jipping: It’s difficult to say because, again, these witnesses have testified in secret hearings already. For some of them, we have their opening statements from those previous hearings. People can read those. And we might have, again, whatever transcripts or other information Adam Schiff chooses to let us see. So, that’s hard to say.
I do hope that as this narrative moves along and these different witnesses testify to parts of it, I do hope that Republicans don’t limit what they’re doing to sort of, “This is a charade and this is a show trial,” and everything, that they do delve into the substance of what it is that these witnesses have to say, and really highlight the fact that we haven’t yet had witnesses with first-hand knowledge of the particular things that we anticipate will be the basis for the impeachment articles. We haven’t seen them.
It’s the kind of thing where … if you were going to do the impeachment process in as nonpartisan and fair way as possible, what would you do? Those things aren’t being done. If you were going to have witnesses to establish allegations of these kinds, what would they say? Witnesses haven’t said that. You know what I mean? So, I think Democrats are going to stick to the narrative and try to prevent anything from distracting from that.
Davis: They say they want impeachment wrapped up before the end of the year. We’ve got one more week of hearings in the House and then, presumably, though nothing is for certain, the House will vote to impeach?
Jipping: Well, no, then it moves to the Judiciary Committee.
Davis: OK, that’s right.
Jipping: House Resolution 660, which was the resolution the House passed a couple weeks ago setting up the public hearings in Intelligence and Judiciary, made [a] provision for those hearings. It’ll be the Judiciary Committee that actually draws up articles of impeachment.
So, I think there’ll be hearings in Judiciary as well. And then they’ll have to go through the process of actually debating and amending or preparing the actual articles, and then it would go to the full House.
The wild card here is that there are four other committees who are investigating. I mean, this is the strangest … and I studied impeachment a lot. In 2010, which was the last impeachment the House did of a federal judge, I was the deputy chief counsel of the Senate Impeachment Trial Committee when that impeachment came over to the Senate. And in the course of a year working on that, I studied impeachment a lot, and this is the strangest process I have ever seen.
In the past it was only one committee, just Judiciary. Now it’s six. Only two committees have some rules set by the House. The other four just sort of, what, investigate in secret, making it up as they go along? We have no idea what those four committees, which are continuing to “investigate” are going to produce and how. We just don’t know.
Davis: It’s like everyone just wants a piece of the action.
Jipping: Well, that’s an awful lot of spaghetti being thrown at the wall, and Democrats chose to do it that way. But if that results in a chaotic process that isn’t quite as organized and managed as they’d like it to be, well, that’s their fault.
Davis: Assuming the House passes articles of impeachment, it’ll go to the Senate. [Senate Majority Leader] Mitch McConnell very recently has said that they would have a trial if they got articles of impeachment. What do you think that would look like?
Jipping: The Senate has a set of rules for impeachment trials. The House does not have separate impeachment rules, but the Senate does, and that’s the basis on which McConnell said we really have to hold an impeachment trial, if there is an impeachment by the House. People criticized him for that, but he was absolutely right.
The impeachment that I mentioned, which was of a federal judge, the Senate uses a separate committee of senators to conduct the trial. But if it’s an impeachment of the president, like it was for Bill Clinton, that trial will take place before the full Senate and it’ll be presided over by the chief justice.
There’ll be a lot of wrangling behind the scenes in preparation for that about whether motions can be made, whether questions of procedure can be settled.
Does the full Senate have to make those decisions? In the impeachment trial, the Senate acts as kind of a combination of the judge and the jury. The prosecutor is the House. So, the House would send some members over to the Senate. They call them impeachment managers, and they play the role of the prosecutor, the defense. The defendant would be the president, and then the Senate itself would play the role of judge and jury.
But there’s only general parallels between this and the criminal justice process. So, all of those questions about procedure, evidence, different sorts of legal standards, things like that, all of that has to be decided or left up to each individual senator.
It can be a very chaotic process. And since there’s so much at stake and it’s so politically charged … I think Former Majority Leader Trent Lott referred to running the Senate as herding cats. I think that’s going to be docile compared to this.
Davis: Wow. Well, we’ll certainly keep covering it. Tom Jipping, thanks so much for your time today.
Jipping: You’re welcome.
