The Real Purpose of the Nadler Impeachment Hearing
David Catron
by
Noah Feldman (YouTube screenshot)

Anyone holding out hope that Wednesday’s impeachment hearing by the House Judiciary Committee would consist of thoughtful testimony from impartial constitutional scholars was destined to be disappointed. Four witnesses appeared, three of whom were chosen by Democratic Chairman Jerrold Nadler, who restricted the Republican committee members to a single voice of reason crying in the congressional wilderness. All of Nadler’s choices were vehemently pro-impeachment, including two longtime Democratic donors who contributed to the presidential campaign of Hillary Clinton and a regular columnist for a “news service” owned by Democratic presidential candidate Michael Bloomberg. Even the solitary Republican witness freely admitted he had voted for Hillary Clinton.

That was Jonathan Turley, of the George Washington University Law School. Turley’s presentation, his personal political leanings notwithstanding, counseled against impeachment. His fellow law professors, Harvard’s Noah Feldman, Stanford’s Pamela Karlan, and the University of North Carolina’s Michael Gerhardt, all but shouted that the president must be removed. Never mind that the crimes of which Trump is accused in the impeachment inquiry report released by Adam Schiff’s Intelligence Committee remain unproven and that he has been denied due process. These academics insist he must go. Indeed, in the regular column he writes for Bloomberg, Professor Feldman warned the Democrats not to get bogged down in pesky legal arguments in their attempt to oust the president:

House Democrats will shift this week from closed-door evidence-gathering to public impeachment hearings against President Donald Trump. The single most dangerous pitfall they face is allowing too much legal talk to obfuscate the fundamental wrongness of Trump’s conduct… Tactically, Democrats need to avoid legalism in impeachment because too much discussion of legal rules will give Trump’s defenders the chance to change the whole sordid Ukraine affair into a lawyerly argument about whether the inherent authority of the presidency allows a president to do whatever he wants in dealing with foreign countries.

The president, as Feldman knows, is the sole organ of the nation with regard to foreign relations. He can’t “do anything he wants,” but nothing Trump said in his July phone call with Ukrainian President Zelensky has been shown to exceed his legitimate powers. But the point of Feldman’s “tactical” advice has nothing to do with what the president did. It is about creating the false illusion of a fair process. It appears that Chairman Nadler and the other Democrats on the Judiciary Committee staged Wednesday’s hearing for that purpose. Yet all three Democratic witnesses, without having read the Schiff report that outlines his alleged crimes, say Trump must be impeached. Professor Karlan, who has consistently donated money to Democrats including Hillary Clinton, put it thus:

I believe the evidentiary record shows … a president who delayed meeting a foreign leader and providing assistance that Congress and his own advisors agreed served our national interest in promoting democracy and limiting Russian aggression. And it shows a president who did this to strong arm a foreign leader into smearing one of the president’s opponents in our ongoing election season. That is not politics as usual — at least not in the United States or any other mature democracy. 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.

First, as noted above, Professor Karlan hasn’t read the “evidentiary record.” The findings of the Schiff Intel Committee, presumably the most comprehensive compilation of Trump’s alleged offenses, were released less than 24 hours before her testimony. She obviously hasn’t read the final draft. At best, Karlan was offering an uninformed opinion based on her own political biases. This, to paraphrase one of her own formulations, is not scholarship as usual. Nonetheless, it is the kind of intellectual dishonesty that all three of the Democratic witnesses engaged in on Wednesday. Professor Gerhardt, another generous donor to Hillary Clinton and other Democrats, provides a particularly egregious example. He misstates the facts and engages in hysterical claims usually reserved for Twitter trolls:

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. Other presidents have done just the opposite in recognizing the legitimacy of congressional investigative and impeachment authorities.… If Congress fails to impeach here, then the impeachment process has lost all meaning, and, along with that, our Constitution’s carefully crafted safeguards against the establishment of a king on American soil.

Yes, you read that correctly. Professor Gerhardt, who is actually permitted to teach students law at the University of North Carolina, provides a constitutional analysis that is more consistent with a rant by some unemployed millennial living in his mother’s basement. The one positive contribution associated with the testimony of professors Feldman, Karlan, and Gerhardt is how it contrasted with the thoughtful testimony from Wednesday’s sole impartial constitutional scholar — Jonathan Turley. As Turley himself pointed out, he voted for Hillary Clinton. Yet, rather than repeating the same tired Democratic talking points, Professor Turley actually listened to the questions he was asked and answered them in a way that made it clear he cares about more than the politics of the moment:

I voted against [Trump] in 2016 and I have previously voted for Presidents Clinton and Obama. Second, I have been highly critical of President Trump, his policies, and his rhetoric, in dozens of columns. Third, I have repeatedly criticized his raising of the investigation of the Hunter Biden matter with the Ukrainian president. These points are not meant to curry favor or approval. Rather they are meant to drive home a simple point: one can oppose President Trump’s policies or actions but still conclude that the current legal case for impeachment is not just woefully inadequate, but in some respects, dangerous, as the basis for the impeachment of an American president.

Probably the most important exchange between a committee member and Turley was the following, initiated by Rep. John Ratcliffe (R-Texas): “So if I were to summarize your testimony: No bribery, no extortion, no obstruction of justice, no abuse of power. Is that fair?” Turley promptly answered, “Not on this record.” Turley wasn’t saying that such charges aren’t grounds for impeachment. He meant the Democrats had failed to provide credible evidence that any of these offenses actually occurred. The Democrats on the Judiciary Committee talked as if Trump had been caught red-handed committing these crimes. Anyone familiar with the facts will see through this nonsense. The Democrats have produced nothing more than hearsay from anti-Trump partisans.

The most deadly GOP attack on the legitimacy of the Judiciary Committee hearing, however, was a speech that Nadler himself delivered in 1998 during the Clinton impeachment. Several Republicans read excerpts back to him: “There must never be a narrowly voted impeachment or an impeachment substantially supported by one of our major political parties and largely opposed by the other. Such an impeachment would lack legitimacy.” But such considerations are now irrelevant to the Democrats. Wednesday’s hearing was an attempt to hide their hyper-partisan coup beneath a canopy of pseudo-constitutional camouflage. In the end it will fail. The polls show that the voters already know what they’re up to. Trump will remain in office and be easily reelected in 2020.

David Catron
David Catron
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David Catron is a recovering health care consultant and frequent contributor to The American Spectator. You can follow him on Twitter at @Catronicus.
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