Can constitutional experts take down Trump?
Democrats on the House Judiciary Committee on Wednesday attempted to make the case against President Trump at the House's first impeachment hearing. They did this by calling a group of professors and constitutional legal experts to testify, and while those expert witnesses had some indelible moments, and overall built a credible case that the president's behavior was impeachable, the Democrats continued their penchant for providing their adversaries nearly limitless runway for insane theatrics and partisan ugliness that overshadows their message. This might have been the greatest day for America's beleaguered professoriate in decades, but the hearing itself likely did little change the overall dynamics of impeachment.
At the heart of the Democrats' struggles may be a misunderstanding of what they are trying to achieve. These proceedings aren't a trial — instead, they should be looked upon as an attempt to convince a grand jury to indict the president. As New York Judge Sol Wachtler noted in 1985 in a quote popularized on the CBS drama The Good Wife: "If a district attorney wanted, a grand jury would indict a ham sandwich." And that's all the House can do: Indict, and send it to the Senate, mustard and all.
Senior members of the GOP operation to save the president know this. And so they arrived at the hearing with their standard assortment of childish placards and feigned outrage, with the task of appearing weary and put-upon now assigned to a mostly new group of would-be sycophantic inner-circlers, beginning with ranking member Rep. Douglas Collins (R-Ga.). Following his obstreperous lead, Republicans spent the early part of the hearing forcing voice votes on idiotic motions, like an attempt to make Rep. Adam Schiff (D-Calif.) of the Intelligence Committee testify. Mind-blowingly, House Judiciary Committee Chair Jerrold Nadler (D-N.Y.) repeatedly allowed Republicans to successfully grind the proceedings to a halt so that each committee member's vote could be recorded, an incredibly tedious exercise, the sole purpose of which was to slow-roll the expert testimony and convince bored Americans to turn off their televisions.
Nadler and the Democrats also abided by rules allowing the minority party to call one witness for every three by the majority. What party elites hope to gain by this pointless adherence to rules and norms is not obvious, but it clearly did nothing to convince Republicans of the legitimacy of the proceedings. They continued to rail against the process, this time kvetching that the Judiciary Committee should have been the site of testimony and evidence. But remember: The House sets its own rules, and Democrats should have simply shut Republicans out of these hearings altogether, allowing them only token participation and zero power to call witnesses. Leading Democrats have still not internalized the new rules of D.C.: Republicans will never reciprocate concessions, will never acknowledge attempts at fairness, and will instead relentlessly attack you in bad faith no matter what you do. There is no middle ground.
In any case, the witnesses hostile to the president were quite effective, none more so than Professor Pamela Karlan, who served in the Obama Justice Department. Departing from all of the other witnesses, Karlan went after the bad faith of Collins and the Republicans directly, and made a convincing case that the president's conduct merits impeachment. Professors Noah Feldman and Michael Gerhardt (who argued in favor of Bill Clinton's impeachment 21 years ago) gave similarly compelling testimony that touched on the intent of the founders when they designed the process, and helpfully outlined what the Constitution's architects meant when they talked about high crimes and misdemeanors. Among the more notable tidbits was Feldman's reminder that the phrase "high crimes and misdemeanors" means "high crimes and high misdemeanors" and that the adjective "high" simply means "connected to the office of the president."
Feldman argued forcefully that the president had abused the powers of his office. "The essential definition of high crimes and misdemeanors is the abuse of office. The framers considered the office of the presidency to be a public trust." Trump, Feldman noted, had betrayed that trust. He also made a point of noting, under hostile questioning, that he had been "an impeachment skeptic" prior to the revelations about Trump's July 25th phone call with Ukrainian President Volodymyr Zelensky. He and Karlan were particularly adamant that the framers of the Constitution had been especially worried about foreign interference in U.S. elections.
Karlan addressed head-on the idea that voters should simply decide the issue in November 2020, saying: "The framers of our Constitution realized that elections alone could not guarantee that the United States would remain a republic. One of the key reasons for including an impeachment power was the risk that unscrupulous officials might try to rig the election process." Gerhardt noted that the combination of impeachable offenses and "obstruction of Congress" was " worse than the misconduct of any prior president, including what previous presidents who faced impeachment have done or been accused of doing." All three withstood withering cross-examination from Republicans with minimal damage.
But Republicans were clever to have head-faked Nadler into inviting Jonathan Turley, a George Washington University professor and professional gadfly, who had argued forcefully in favor of Clinton's impeachment in 1998 but who now believes that the attempt to impeach Trump has gotten way out over its skies. "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," Turley argued. It was interesting, though, that GOP elites could not find a single law professor in America who could argue that the president did nothing wrong. Turley noted that the president's July 25th call with Zelensky was "far from perfect."
Even though he was the GOP's star witness, Turley also inadvertently reinforced the case for Democrats to wait for court proceedings around congressional subpoena power to play out. He argued that Democrats should wait for the courts to determine the legality of the White House's stonewalling. And he seemed convinced that the testimony of first-hand witnesses, including Energy Secretary Rick Perry and the president's personal lawyer, Rudy Giuliani, was necessary to establish the facts of the case. It was an unintentional reminder to Democrats not to wrap up these impeachment hearings before Christmas like some kind of holiday pop-up shop, but rather to hold them open indefinitely, both to make sure that new evidence and testimony can make it into the record, but also to prevent Senate Majority Leader Mitch McConnell (R-Ky.) from bending the trial to his malevolent will.
Even though absurd people like Rep. Matt Gaetz (R-Fla.) made a show of asking the witnesses if they had firsthand knowledge of the Ukraine events (obviously, they didn't), Republicans were mostly forced to grapple with actual constitutional questions, often at length and in ways that not even the more clownish among them could totally avoid. And though they didn't entirely steer clear of conspiracies about former Vice President Joe Biden and the 2016 election, the hearing was unique so far in the extent to which even Republican interrogators were forced to confront the merits of Trump's removal without resorting to misdirection.
What that adds up to is anyone's guess. But the more Americans becomes convinced that Trump did something improper, the more it could hurt him next November, even if he is not removed from office by impeachment. Ham sandwiches, after all, don't age well.
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