In between references to 18th century legal dictionaries, four law professors called by the House Judiciary Committee tangled politely over whether President Donald Trump had committed impeachable offenses.
The three witnesses called by Democrats expressed broad agreement that impeaching Trump for abuse of power is justified. To varying degrees, they said Trump could be impeached for bribery, obstruction of Congress, and obstruction of justice.
"That is not politics as usual, at least not in the United States or any other mature democracy," said Pamela Karlan of Stanford. "It is, instead, a cardinal reason why the Constitution contains an impeachment power. Put simply, a candidate for president should resist foreign interference in our elections, not demand it."
But Jonathan Turley of George Washington University, invited by Republicans, countered that impeachment is no place for broad notions of abuse of power.
"This would be the first impeachment in history where there would be considerable debate, and in my view, not compelling evidence of the commission of a crime," Turley said.
The legal scholars’ testimony was designed to provide historical context for the House Judiciary Committee as it considers possible articles of impeachment in the coming days. Any articles that pass the committee would go to consideration in the full House.
Turley said he didn’t vote for Trump and doesn’t support him, and that his personal feelings are irrelevant. Under questioning from Republicans, some of the other scholars said they had donated to Democratic candidates.
Here are their arguments for and against impeaching Trump.
Abuse of power
Noah Feldman of Harvard said the word "high" in the phrase "high crimes and misdemeanors" refers to high office, not the degree of the crime. Therefore, he said, "the essential definition of high crimes and misdemeanors is the abuse of office."
Trump called Ukrainian President Volodymyr Zelensky and asked him to investigate matters related to Joe Biden and his son Hunter, who served on a Ukrainian energy company’s board.
"This act on its own qualifies as an impeachable high crime and misdemeanor," Feldman said, noting it was made in the course of Trump’s official duties for a personal advantage.
Karlan agreed, saying, "The very idea that a president might seek the aid of a foreign government in his re-election campaign would have horrified (the framers). But based on the evidentiary record, that is what President Trump has done."
Bribery is a particularly important concept in impeachment, because it is specifically listed as a cause for impeachment in the Constitution. Karlan said she believes Trump’s actions qualify as bribery, though she distinguished between the statute of bribery today and what the framers would have understood it to mean, as there was not yet a federal criminal code.
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Karlan said bribery was seen then as "the idea that when you took private benefits or when you asked for private benefits in return for an official act." In her view, Trump’s phone call and request for investigations amounted to that.
Feldman said if the House were to determine that getting investigations undertaken was a thing of value to President Trump, then the House could safely conclude that the president had committed bribery under the Constitution.
Obstruction of Congress
Obstruction of Congress was one of the articles of impeachment against President Richard Nixon approved in committee, and Michael Gerhardt of the University of North Carolina argued that Trump’s actions could qualify.
Trump has refused to comply with and directed at least 10 others in his administration not to comply with lawful congressional subpoenas or testify, including Secretary of State Mike Pompeo, Energy Secretary Rick Perry, and acting Chief of Staff and head of the Office of Management and Budget Mick Mulvaney, Gerhardt said.
Feldman said a president who stiff-arms legitimate congressional requests essentially puts himself above the law, which is at the "core of an impeachable offense."
Obstruction of justice
It isn’t just about Ukraine, Gerhardt said. At least five instances of obstruction by Trump were found by Robert Mueller’s special counsel investigation of Russian election interference, Gerhardt said. (The other two Democratic witnesses did not mention obstruction of justice charges in their opening statements.)
These included orders to his then-White House Counsel, Don McGahn and former campaign manager Corey Lewandowski that sought to block Mueller and the Russia investigation. They also included dangling pardons for former campaign chair Paul Manafort and former National Security Adviser Michael Flynn and intimidating his former attorney, Michael Cohen, Gerhardt said.
Mueller did not make a determination as to whether Trump committed a crime. His report said that "if we had had confidence that the president clearly did not commit a crime, we would have said so."
Attempted actions can be impeachable even if not completed
The three Democratic-called witnesses rebutted arguments by Trump allies that there was no impeachable offense because aid eventually flowed to Ukraine and no investigation related to Biden was ever announced or undertaken.
Karlan offered the analogy of a police officer who offers a driver a way out of a speeding ticket if the driver pays him $20. Even if the driver says they don’t have the cash and the officer lets him go without a ticket, it’s still solicitation of a bribe, she said.
A rush to impeach
Turley decried lowering the bar for impeachment "to fit a paucity of evidence and an abundance of anger." He said enough time to investigate is an essential ingredient, for reasons of principle as well as politics.
"Impeachment requires saturation and maturation," he said. "The public has to catch up. If you rush this, you are going to leave half the country behind."
Turley said Trump might have had good reason to withhold about $400 million in security aid to Ukraine. He might not have done it strictly to damage a political rival and boost his odds of winning re-election.
"There are defenses that have not been considered," he said. He noted that former National Security adviser John Bolton, Rudy Giuliani, and acting chief of staff Mulvaney all were key participants, but have yet to testify. Even Trump’s legal challenge, against their appearing is part of a necessary process, he said. (More on that in a bit.)
Bribery case not proven
Turley forcefully rejected the Democratic line that impeachable offenses don’t need to meet the legal definition of a crime.
"We have never impeached a president solely or even largely on the basis of a non-criminal abuse of power," he said.
Among other points,Turley focused on the idea that Trump’s dangling of aid amounted to the use of public dollars for private political gain. He noted that Zelensky has said he saw no quid pro quo, nor did Trump spell out a tit-for-tat in his July 25 phone call with Zelensky.
"Presidents often use aid as leverage and seek to advance their administrations in the timing or content of actions," he said. "Any bribery case would collapse on the current lack of evidence of a corrupt intent."
A leap to obstruction of justice
Democrats have made much about Trump’s efforts to block testimony by key staffers. But Turley said the administration has released many records, most notably the summary of the call with Zelensky.
More fundamental, he said, is Trump has the right to plead his case in court. On that front, he charged the Democrats with abusing their power by not allowing the court cases to proceed.
Nixon resigned days after a key court ruling against him, Turley said. Winning in court would put Congress on much firmer ground as it built the case for impeachment, he added, and moving forward before the legal process plays out weakens that case.
Opening statement by Jonathan Turley, Dec. 4, 2019