WASHINGTON (CN) — Unequivocal in their testimony, three constitutional law scholars summoned before the House Judiciary Committee told lawmakers Wednesday that President Donald Trump committed offenses that should lead to his impeachment.
“The president’s serious misconduct, including bribery, soliciting a personal favor from a foreign leader in exchange for his exercise of power, and obstructing justice and Congress are worse than the misconduct of any prior president, including what previous presidents who faced impeachment have done or been accused of doing,” Michael Gerhardt, a law professor for the University of North Carolina School of Law, said this morning in his written statement before testifying.
No sooner had Democratic Chairman Jerry Nadler kicked off the proceedings than the House minority sought to postpone it and convene their own dissenting hearings.
Nadler, a veteran of the Clinton impeachment proceedings, responded with a thundering speech on the gravity of the moment.
“The patriots who founded our country were not fearful men,” Nadler noted. “They fought a war. They witnessed terrible violence. They overthrew a king. But as they met to frame our Constitution, those patriots still feared one threat above all: foreign interference in our elections.”
The Constitution allows for the impeachment of a president for treason, bribery or other high crimes and misdemeanors, and Nadler called Trump’s impeachment inquiry unique in one respect.
“Never before has a president engaged in a course of conduct that included all of the acts that most concerned our framers,” the chairman remarked.
Like his counterpart in the Intelligence Committee, the Judiciary Committee’s ranking Republican, Doug Collins, attacked the very structure of the impeachment process — calling the hearing a “show.”
“Today marks the first time the president’s lawyers have been invited to participate, but, rather than asking questions of fact witnesses, the president’s counsel gets to question law professors,” Collins derided.
Pamela Karlan, a public interest law professor testifying for the Democrats, responded to the remark directly as she delivered her opening statement.
“I would like to say to you, sir, I read transcripts of every witness who appeared in live hearings,” said Karlan, locking eyes with the Georgia Republican. “I would not speak about these things without reviewing the facts. I am insulted by the suggestion as a law professor that I don’t care about those facts.”
Testifying one day after the House Intelligence Committee released its report on the inquiry thus far. At 300 pages, the report reads more like charging papers, a searing indictment of the 45th president of the United States.
Noah Feldman, a Harvard Law School professor, has been openly critical of the president before today. 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.
“President Trump has committed impeachable high crimes and misdemeanors by corruptly abusing the office of the presidency,” Feldman intoned.
In his written opening statement, Feldman told Congress the president is not to be treated like a monarch.
“The biggest difference between the English tradition of impeachment and the American constitutional plan was that the king of England could not be impeached,” Feldman said. “In that sense, the king was above the law, which only applied to him if he consented to follow it. In stark contrast, the president of the United States would be subject to the law like any other citizen.”
Punning on the First Family, Karlan put it this way: “The Constitution says there can be no titles of nobility, and so while the president can name his son Barron, he cannot make him a baron.”
The professor later apologized for the comment after she was admonished by Representative Matt Gaetz on the panel, the White House press secretary in a press release, and a tweet by the First Lady Melania Trump.
“I wish the president would apologize for the wrong things he’s done, but I will apologize for what I said, it was wrong of me to say that,” she said.
Jonathan Turley, a professor of public interest law at the George Washington University School of Law, is the witness for the Republicans. Turley has written extensively about the impeachment inquiry, regularly criticizing its fast pace and what he has dubbed a “flawed process.”
Conceding that Trump’s call with Ukrainian President Volodymyr Zelensky was “anything but ‘perfect,'” Turley argued against what he called an “age of rage.”
“You are mad,” Turley told lawmakers, announcing he is not a Trump supporter. “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.”
Turley’s full-throated opposition to Trump’s impeachment took a dramatically different character to that of House Republicans, who do not concede any wrongdoing by the president and have counterattacked at every turn.
Their witness recognized problems with Trump’s call with Zelensky and even proposed further investigation by the House in a more drawn-out process. But Turley quibbled over whether the Democrats’ definition of bribery comported with the permissive standard the Supreme Court allowed in the case of former Virginia Governor Robert McDonnell, a precedent that effectively permitted buying political access.
Referring to this case, Turley noted: “The justices considered ‘boundless interpretation’ of bribery to be dangerous.”
“It gives me no joy to disagree with my colleagues,” he continued, “but you can’t accuse a president of bribery, and note that the Supreme Court has rejected your interpretation, and then say, well, it’s just impeachment, we don’t have to prove the elements.”
Contrasting the law with improvisational jazz, Turley said: “Close enough is not good enough.”
Professor Karlan, who serves as co-director of the Supreme Court Litigation Clinic at Stanford Law School, argued that this was not the definition of bribery as it was understood by the Framers.
“I have the 1792 definition of bribery: the crime of giving or taking rewards for bad practices,” she said. “So if you think it’s a bad practice to deny military appropriations to an ally and do it in return for the reward of getting help with an election, then that’s the definition of bribery.”
During a round of questioning with Norm Eisen, the Democrats’ attorney for impeachment proceedings in the Judiciary Committee, Karlan agreed that President Trump’s demands on Ukraine’s President Volodomyr Zelensky did, in fact, constitute high crimes and misdemeanors as well as bribery.
“Yes, they did,” Karlan said, before noting the importance of distinguishing between the charge here and the current criminal code.
“It was 60 years after ratification of the Constitution that any federal bribery law existed,” the professor explained. ”So, when Framers say a president can be removed for bribery, they were not referring to a statute.
“They were thinking about bribery as it was understood in the 18th century,” Karlan continued, referring to the common understanding that bribery meant the exchange of private benefits — or the request of private benefits — in return for an official act.
Shown footage of Ambassador Gordon Sondland testifying about a quid pro quo that conditioned a meeting with Zelensky on the announcement of an investigation, Karlan’s judgment was unequivocal.
“If someone gave them to you to influence an official act, that is bribery,” the professor said, adding later that the Zelensky request also fit that bill.
The Democrats also rolled tape of Trump summarizing his Article II powers: “I have the right to do whatever I want as president.”
Asked about the tape, Professor Feldman said: “As someone who cares about the Constitution … [the line] struck a kind of horror in me.”
Gerhardt told lawmakers that the Constitution’s impeachment powers were made for this moment.
“If what we’re talking about is not impeachable, then nothing is impeachable,” the professor declared.
Throughout the hearing, Gerhardt’s cool tone contrasted against the fire of the other speakers.
“When we apply our constitutional law to the facts found in the Mueller report and other public sources, I cannot help but conclude that this president has attacked each of the Constitution’s safeguards against establishing a monarchy in this country,” he said.