Constitution Takes Spotlight in Next Phase of Impeachment Inquiry

WASHINGTON (CN) – High crimes and misdemeanors. Bribery and extortion. Impeachment and removal. These words and more will dot the landscape of a hearing hosted by the House Judiciary Committee on Wednesday to explore – and square off – over the constitutional grounds for impeaching President Donald Trump.

For House Democrats, the theme will be substance. They must juxtapose key moments of testimony from senior Trump administration officials delivered during the House Intelligence Committee’s blitz of public and private inquiry hearings last month with the opinions of constitutional law experts offered Wednesday.

The House Judiciary Committee will not rehash the content of those hearings where senior Trump administration officials testified of a culture of concern over the president abusing his office for his own political and personal benefit while leveraging some $400 million in taxpayer-funded military aid to an American ally.

Instead, Wednesday’s hearing will be for constitutional and legal scholars to provide lawmakers and the public with information about the very rarely invoked and solemn process of impeachment, laid out in context for the nation to consider.

For House Republicans, the theme on Wednesday will be process and rejection. For weeks, Republicans have moored themselves to the argument that the impeachment inquiry is an unfair, politically motivated sham born from a long-simmering Democrat-led desire to remove Trump from office in any way possible.

The GOP’s intent for Wednesday’s hearing – likely the same as a potential trial in the Senate – was previewed in an inquiry report of their own issued Monday night. Published a day before House Democrats prepared to release their report on Tuesday night, the 123-page Republican missive amounted to a resolute and full-throated defense of the president’s engagement with Ukraine.

Firsthand accounts of members of the White House’s National Security Council as well as testimony from senior diplomatic officials at the State Department indicated that Trump not only put Ukrainian national security interests at risk by leveraging – and withholding – military aid, he also put U.S. national security interests at risk by leaving Ukraine vulnerable and underfunded in the midst of a hot war with the Kremlin.

These details have been relegated by Republicans as bureaucratic musings from unelected officials. For Democrats, the details are inculpatory evidence and the lifeblood of the inquiry.

Between these two disparate ideas, four scholars will have the Herculean task of delivering pertinent information about the framework of impeachment even as lawmakers will likely debate bitterly before, during and after rounds of questions.

Noah Feldman, a Harvard Law School professor who has been openly critical of the president, will testify. In October, Feldman wrote in Bloomberg News that Trump’s conditioning of military aid in exchange for political investigations was quid pro quo that warranted impeachment. In another piece for The New York Times, Feldman’s described the impeachment showdown between an unrepentant president and a deeply divided Congress at its center as a “constitutional crisis.”

Pamela Karlan, a public interest law professor and co-director of the Supreme Court Litigation Clinic at Stanford Law School will testify as well. Questions directed at Karlan could go beyond the scope Trump’s engagement with Ukraine and extend to Trump’s obstruction during Special Counsel Robert Mueller’s probe.

In a May 2017 interview with The Stanford Lawyer, Karlan discussed the legal implications behind Trump’s firing of FBI director James Comey.

“If the firing is intended to obstruct a legitimate criminal investigation, it starts to veer into impeachment territory,” Karlan said.

Lawmakers will also hear from Michael Gerhardt, a law professor for the University of North Carolina School of Law and Jonathan Turley, a professor of public interest law at the George Washington University School of Law.

All of the witnesses except for Turley have been called by Democrats. Turley has written extensively about the impeachment inquiry, regularly criticizing its fast pace and what he has dubbed a “flawed process.”

The inquiry thus far has been a conflagration of fierce debate, criticism and pointed rhetoric with the very document that binds Americans to a democracy, the U.S. Constitution, at its center.

But for some, like Ross Garber, a lawyer and leading national impeachment expert who defended four U.S. governors in impeachment proceedings, though the pains of an impeachment inquiry are palpable a “constitutional crisis” it is not. In fact, he says the U.S. was made for this.

“The impeachment process is part of the Constitution. I think a crisis might exist if something happened that could not be remedied within the constitutional system,” Garber said. “For example, if a president were voted out of office but refused to go, persuading the military to back him. But that’s not what’s happening. I think we are in the heartland of what the Constitution contemplated.”

Understanding what can make Trump’s impeachment inquiry feel particularly calamitous requires a helping of perspective, Garber added.

“In Nixon, almost every Republican supported initiating an impeachment inquiry. In Clinton, 31 members of the president’s own party supported initiating an impeachment inquiry and the rules and procedures were adopted unanimously by the Judiciary Committee,” Garber said.

With Trump, not a single Republican voted to initiate impeachment proceedings or in favor of rules authorizing the inquiry. They were joined by just two Democrats.

And unlike the issues at the core of the Nixon and Clinton impeachments – which moved lawmakers and voters alike to put partisanship aside, at least for a moment – the issues around Trump are fueled by a mix of stark partisanship and maybe even a bit of fatigue.

“The Ukraine issues don’t seem to be resonating,” Garber said. “People are concerned about more immediate and personal issues and our faith in and perceived reliance on institutions has diminished.”

compilation of national polls culled by The Washington Post on Tuesday showed that even after the much-anticipated House Intelligence hearings, many U.S. voters remain split on whether impeachment is the right course.

“People are inoculated to allegations of Trump misconduct. Think of all the serious allegations we’ve seen over the past 3 years. Could you even come up with a complete list? I think it’s hard to make this Ukraine stuff seem like it’s so much more serious than all the other allegations,” Garber said.

It is possible Wednesday’s hearing, as it underlines the gravitas of impeachment, could move the needle on public opinion but there’s no guarantee. Even those voters who believe Trump engaged in conduct unbecoming the president, an alternative method to oust him looms on the horizon.

“The 2020 election season has already started. The public sees a mechanism in which they – not those in Congress – can address any problematic Trump behavior,” Garber said.

Bobby Mattina, a spokesperson for House Intelligence Committee member and Washington Democrat Representative Denny Heck, said Tuesday that Heck, like many other Democrats, is banking on a rather simple premise for Wednesday.

“His hope is that the hearing will help convey the gravity of the situation and show that the president’s actions constitute impeachable offenses,” Mattina said.

The president will not attend Wednesday’s hearing or send his attorney in his stead to offer evidence, direct questions or cross-examine witnesses, according to a letter issued earlier this week from White House counsel Pat Cipollone.

Cipollone did, however, leave open the opportunity for Trump to participate in future hearings hosted by the committees.

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