The House Judiciary Committee on Dec. 4 convened its first impeachment hearing which, in reality, served no purpose beyond attempting to endow President Donald Trump’s political opponents with an air of constitutional credibility. There were no fact witnesses; instead, Committee Chairman Jerrold Nadler (D-NY) arranged to parade before the American public four constitutional scholars who presented their respective cases for the impeachment – or non-impeachment, in one case – of the president.
The first interesting point to note is that none of these four scholars, even the one chosen by Republicans on the committee, are politically aligned with President Trump. Stanford Law School professor, Pamela S. Karlan, was a Justice Department official during the Obama administration and is considered a champion of just about every progressive cause one could imagine.
Noah R. Feldman, a Harvard Law School professor, worked for Hillary Clinton’s 2016 election campaign, and Michael J. Gerhardt, a professor of constitutional law at the University of North Carolina at Chapel Hill, wrote up President Bill Clinton’s judicial selection policy. The one witness Republicans were permitted to call was Jonathan Turley, a professor at the George Washington University Law School.
Trump’s Unlikely Ally
Turley was the only one of the four arguing against Trump’s impeachment though he is not – contrary to how certain media outlets are trying to portray him – a Republican operative. In fact, in his opening statement, Turley pointed out that he has been a frequent critic of the president and, further, that he voted for both President Barack Obama and presidential candidate Hillary Clinton.
“Today,” Turley told the committee, “my only concern is the integrity and coherence of the constitutional standard and process of impeachment.” True to his word, Turley made no attempt to defend the president on any matter relating to Ukraine. This stood in stark contrast to the hyper-partisan Karlan, whose demeanor could be described as strident and snarky. At one point, for example – while making a point about the difference between a king and the Founding Fathers’ vision of presidential power – Karlan remarked: “While the president can name his son Barron, he can’t make him a baron.”
That inability to resist making her remarks personal and taking a swipe at the president’s youngest child marks Karlan out as typical of the most rabid progressive.
Indeed, Turley was, clearly, the only one of the four professors who had not arrived at the hearing with the specific intent of presenting only those parts of constitutional legal history that could be used to suggest Trump’s alleged transgressions are impeachable.
Congressional Abuse of Power
Ironically, and by his own admission, Turley favors the power of Congress over the power of the president. His faith is in Article I of the Constitution, rather than in Article II. The case he laid out before the committee was not one designed to demonstrate the president’s innocence but to protect Congress from its own excesses. Arguing that there was no case against the president for obstruction of justice, Turley addressed the specific issue of Trump’s legal challenge to congressional subpoenas, saying:
“President Trump has gone to the courts. He’s allowed to do that. We have three branches [of government], not two. I happen to agree with some of your criticism about President Trump, including that earlier quote my colleague talked about, [Trump is] saying there’s this Article two and he gives this overriding interpretation. I share that criticism. You’re doing the same thing with Article I.”
Turley is making a valid point: Just as the president has no right to claim unlimited power, so the Congress has no right to claim it either. Congress cannot simply demand that the executive branch hand over anything it demands and then cry “obstruction!” when the latter resists that demand. The argument here is that the courtroom is the appropriate place to decide the power of a subpoena, as opposed to Congress dictating that its subpoenas are not subject to challenge.
“[But] I can’t emphasize this enough and I’ll say it just one more time,” Turley told the panel, “If you impeach a president – if you make a high crime and misdemeanor out of going to the courts – it is an abuse of power. It’s your abuse of power.”
Substance v. Partisanship
This was a hearing with two facets. On the one hand, three partisan scholars did exactly what many of the other impeachment witnesses had done: They implied wrongdoing on the president’s part, based on what they knew of the record of events and on what they surmised – in their case, set against their own interpretations of the Constitution. On the other hand, one scholar argued the danger – for Congress and for the country – of impeaching a president out of anger and based upon a paucity of evidence. He, Turley, argued that the standard for impeachment would be lowered to a level that invited political turbulence and division for many years to come.
There was a lot of discussion about what the Founding Fathers would make of it all. As Rep. Doug Collins (R-GA) pointed out, the very idea that the people in that chamber, on that day, could divine the inner thoughts of the Founders and apply them to the current state of affairs was rather ridiculous. One thing is almost certain, however: The great men who forged the United States of America and created its founding documents would have been appalled that Congress had chosen – at least in part – to base its decision regarding whether to impeach a president or not on the machinations of four unelected college professors.
Read more from Graham J Noble.