The House Judiciary Committee, holding its first day of impeachment hearings Wednesday, heard from four legal scholars on the case for and against removing President Donald Trump from office less than a year before a presidential election.
After five days of public hearings over two weeks, the House Intelligence Committee submitted its report—contested by the panel’s Republicans—to the Judiciary Committee, which will make the final determination on drafting and adopting articles of impeachment.
“We are all aware that the next election is looming. But we cannot wait for the next election to address the present crisis,” Judiciary Chairman Jerry Nadler, D-N.Y., said in his opening remarks. “The integrity of that election is one of the very things at stake. The president has shown us his pattern of conduct. If we do not act to keep him in check now, President Trump will almost certainly try again.”
The Intelligence Committee report, and its key witnesses, promotes a case of bribery, abuse of power, and obstruction of justice against Trump based on his July 25 phone conversation with Ukrainian President Volodymyr Zelenskyy.
During the call, the two leaders talked about Trump’s interest in investigating Ukraine’s alleged meddling in the 2016 presidential election as well as the Ukraine-related actions of former Vice President Joe Biden and his son, Hunter Biden, who had a lucrative position on the board of the Ukrainian energy company Burisma.
Democrats called three law professors as witnesses Wednesday, and generally asked questions of them only about their conclusion that Trump committed impeachable offenses. Republicans had a single witness, a fourth law professor who warned lawmakers that they hadn’t made the case for impeachment.
Here are six takeaways from the Judiciary Committee hearing, which lasted more than seven hours.
1. ‘Tears in Brooklyn’
The Trump impeachment effort ultimately dates back to Democrats’ sour grapes about losing an election, Rep. Doug Collins, R-Ga., the committee’s ranking member, said in opening remarks.
“This is not an impeachment. This is just a simple railroad job, and today’s is a waste of time,” Collins said.
Collins responded to Nadler’s mention earlier of special counsel Robert Mueller’s report on Russian meddling in the 2016 presidential campaign. The report determined that neither Trump nor his campaign conspired with the Russian government or Russian operatives. However, it didn’t determine that Trump obstructed justice.
Collins said the previous investigations, or the current one, hardly matter to those motivated to remove Trump without an election.
“This didn’t start with Mueller,” Collins said. “This didn’t start with a phone call. This started with tears in Brooklyn in November of 2016 when an election was lost.”
The reference was to Democratic nominee Hillary Clinton’s campaign headquarters in Brooklyn.
2. ‘Safeguards Against Establishing a Monarchy’
Michael Gerhardt, a law professor at the University of North Carolina School of Law, testified that he was fearful that not impeaching Trump would raise the bar too high for future impeachments.
“I just want to stress—if what we’re talking about is not impeachable, then nothing is impeachable,” Gerhardt told the committee.
“The record compiled thus far shows the president has committed several impeachable offenses, including bribery, abuse of power, and soliciting of personal favor from a foreign leader to benefit himself personally, obstructing justice, and obstructing Congress,” Gerhardt said.
At the time of the July phone call, Trump had placed a hold on nearly $400 million in congressionally approved military aid to Ukraine, although Zelenskyy did not know this. Nor did the men refer specifically to the status of that aid in their conversation, according to the official White House transcript.
Zelenskyy has said repeatedly that he did not feel pressured by Trump to open investigations.
Gerhardt went on to talk about a monarchy.
“I cannot help but conclude that this president has attacked each of the Constitution’s safeguards against establishing a monarchy in this country,” Gerhardt said, adding: “If Congress fails to impeach here, then the impeachment process has lost all meaning, and, along with that, our Constitution’s carefully crafted safeguards against the establishment of a king on American soil.”
Another witness, Stanford University law professor Pamela Karlan, later joked about Trump’s seeking to be royal and invoked the name of his 13-year-old son.
“The Constitution says there can be no titles of nobility. So, while the president can name his son Barron, he cannot make him a baron,” Karlan said, to some laughter.
First lady Melania Trump took exception to this crack in a tweet.
Sometime later, Karlan said during the hearing: “I want to apologize for what I said earlier about the president’s son. It was wrong of me to do that. I wish the president would apologize, obviously, for the things that he’s done that are wrong. But I do regret having said that.”
3. ‘We Are All Mad’
A bigger concern is lowering the standard of impeachment to meet the anger of the moment, testified Jonathan Turley, a law professor at George Washington University.
Turley stressed that he didn’t vote for Trump and is frequently critical of his policies and behavior. He said the Trump-Zelenskyy phone call was anything but “perfect”—the president’s repeated word for it—and warranted congressional oversight.
After that, however, the sole Republican-called witness disappointed Democrats on the committee.
“One can oppose President Trump’s policies or actions but still conclude that the current legal case for impeachment is not just woefully inadequate, but in some respects, dangerous, as the basis for the impeachment of an American president,” Turley told the committee.
“If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president,” he said. “That does not bode well for future presidents who are working in a country often sharply and, at times, bitterly divided.”
Turley compared the current impeachment process to the 1868 impeachment of President Andrew Johnson, which was based largely on the fact that Republicans in Congress didn’t like the president who took office after Abraham Lincoln’s assassination.
“I get it. You are mad. The president is mad. My Democratic friends are mad. My Republican friends are mad. My wife is mad. My kids are mad. Even my dog is mad, and Luna is a goldendoodle and they are never mad,” Turley said, in a rare moment of levity that drew laughter.
“We are all mad and where has it taken us? Will a slipshod impeachment make us less mad, or will it only give an invitation for the madness to follow in every future administration?” he asked.
Turley added that a provable case that Trump deployed a “quid pro quo” to push Ukraine to investigate Joe Biden and Hunter Biden could be an impeachable offense. But he described the investigative process as incomplete.
“You can declare the definitions of crimes alleged are immaterial and this is an exercise of politics, not law,” Turley said. “However, the legal definitions and standards that I have addressed in my testimony are the very things dividing rage from reason.”
4. ‘Bribery Has a Clear Meaning’
The House would have a strong case that Trump committed bribery, testified Noah Feldman, a professor at Harvard Law School, in response to a question from Nadler.
“Bribery had a clear meaning to the framers. It was, when the president, using the power of his office, solicits or receives something of personal value from someone affected by his official powers,” Feldman said, adding:
I want to be clear. The Constitution is law. The Constitution is the supreme law of the land [and] specifies bribery as a ground for impeachment as it specifies other high crimes and misdemeanors. Bribery had a clear meaning.
If the House believes the president solicited something of value [from Zelenskyy] in the form of investigations or announcement of [an] investigation and that he did so corruptly for personal gain, then that would constitute bribery under the Constitution.
5. A What-If on Texas, Louisiana Hurricanes
Karlan, the professor at Stanford Law School, framed the matter of withheld U.S. aid in the context of a domestic situation, presenting a what-if scenario to show the gravity of it.
“Imagine living in a part of Louisiana or Texas that’s prone to devastating hurricanes and flooding,” Karlan said, adding:
What would you think if, when your governor asked the federal government for the disaster assistance that Congress has provided, the president responded, ‘I would like you to do us a favor. I’ll meet with you and send the disaster relief once you brand my opponent a criminal’?
Wouldn’t you know in your gut that such a president had abused his office, betrayed the national interest, and tried to corrupt the electoral process?
I believe the evidentiary record shows wrongful acts on that scale here. It shows a president who delayed meeting a foreign leader and providing assistance that Congress and his own advisers agreed served our national interest in promoting democracy and limiting Russian aggression.
Karlan encouraged the committee to consider a pattern of conduct in which Trump has invited foriegn interference, citing a stump speech in 2016 in which, as a candidate, Trump invited Russia to find Clinton’s “missing” emails, and this year, his call with the Ukraine leader.
“Put simply, a candidate for president should resist foreign interference in our elections, not demand it,” she said.
6. Ken Buck’s History Lesson
Rep. Ken Buck, R-Colo., suggested a clear record of past presidential conduct that likely would be impeachable under the parameters laid out by the three Democrat-called witnesses.
“They’ve said if a president abuses his power for personal or political gain, it’s impeachable conduct,” Buck said.
Throughout the hearing, Democrats barely addressed Turley and Republicans didn’t address Karlan, Gerhardt, or Feldman. In an illustration of that pattern, Buck repeatedly asked Turley what his three colleagues would have thought about the conduct of previous presidents.
“Lyndon Johnson directed the Central Intelligence Agency to place a spy in [election opponent] Barry Goldwater’s campaign,” Buck said. “That spy got advanced copies of speeches and other strategies and delivered that to the Johnson campaign. Would that be impeachable conduct according to the other panelists?”
Turley responded, “I assume.”
Buck then asked: “How about when President Johnson put a wiretap on Goldwater’s campaign plane? Would that be for political benefit?”
Turley again assumed it would.
Buck referred to an earlier comment by Rep. Ted Deutch, D-Fla., that President Franklin D. Roosevelt always put country first.
“Now, Franklin Roosevelt, when he was president, directed the IRS to conduct audits of his political enemies, namely Huey Long, William Randolph Hearst, Hamilton Fish, Father [Charles] Coughlin,” Buck said. “Would that be an abuse of power for political benefit according to the other panelists?”
Turley: “I think it would all be subsumed with it.”
Buck: “How about when President Kennedy directed his brother [Attorney General] Robert Kennedy to deport one of his mistresses as an East German spy? Would that qualify as impeachable conduct?”
Turley: “I can’t exclude it.”
Buck: “How about when [Kennedy] directed the FBI to use wiretaps on congressional staffers who opposed him politically, would that be impeachable conduct?”
Turley: “It would seem to be falling within it.”
Buck: “Let’s go to Barack Obama. When Barack Obama directed or made a finding that the Senate was in recess and appointed people to the National Labor Relations Board and lost 9-0 [at the Supreme Court], Ruth Bader Ginsburg voted against the president on this issue. Would that be an abuse of power?”
Turley: “I don’t see any exclusion under their definition.”
Buck, referring to Obama and the Benghazi attacks of 2012: “How about when the president directed his national security director and secretary of state to lie to the American people about whether the ambassador to Libya was murdered as a result of a video or murdered as a result of a terrorist act? Would that be an abuse of power for political benefit 17 days before the next election?”
Turley: “Not according to my definition, but the others would have to respond on their own.”
Buck also brought up Lincoln’s Civil War actions before asking: “Can you name a single president in the history of the United States, save President Harrison who died 32 days after inauguration, that would not have met the standard of impeachment for our friends here?”
Turley, a Madison devotee, quipped: “I would hope to God [that] James Madison would escape. Otherwise, a lifetime of academic work would be shredded.”
After being asked a question later in the hearing, Karlan proactively referred to one of Buck’s questions, and sounded ready to impeach LBJ.
“Mr. Buck mentioned past examples of this and to say that those weren’t impeachable is a big mistake,” she said. “I think if a president wiretaps his opponents, that’s a federal crime now. I don’t know if it was before the Wiretap Act of 1968. If a president wiretapped his opponents today, that would be impeachable conduct.”
