House to move on articles of impeachment after hearing from scholars

After the House Judiciary Committee heard testimony from four leading constitutional scholars about the meaning of “high Crimes and Misdemeanors” on Wednesday, Speaker Nancy Pelosi announced Thursday morning the House of Representatives is prepared to begin drafting articles of impeachment against President Donald J. Trump.

After two weeks of testimony from fact witnesses before the House Intelligence Committee, Wednesday’s hearing—focused instead on the law of impeachment—was the first before the Judiciary Committee, the traditional forum for impeachment. The Committee heard testimony from Noah Feldman, Pamela Karlan, Jonathan Turley, and the National Constitution Center’s very own Scholar-in-Residence, Michael Gerhardt. Both Turley and Gerhardt are no strangers to the impeachment stage, as they testified during the impeachment of President Bill Clinton twenty years ago.

The three witnesses called by Democrats—Karlan, Feldman, and Gerhardt—were essentially unanimous in their views. All three stressed that impeachment is designed as a safeguard against presidential abuse of power. All three emphasized that a “high Crime and Misdemeanor” is primarily an abuse of office or some other political offense and is not limited to a technical violation of a criminal statute. And all three agreed that President Trump’s conduct with regard to Ukraine, as established by the Intelligence Committee hearings, rises to the level of an impeachable offense.

Professor Karlan focused on the importance of the electoral process to American democracy, and the danger of allowing a President to subvert or corrupt that process without being held accountable. Professor Feldman argued that impeachment is centrally about misuse of the President’s office for personal gain, rather than in the national interest. And Professor Gerhardt highlighted the separation of powers and the danger of President Trump’s assertions that he is immune from any form of legal accountability—whether through criminal prosecution, investigation by state officials, or investigation by Congress. Professor Gerhardt also suggested that, if President Trump’s conduct in this case is not impeachable, nothing would be.

Norm Eisen, the Committee’s majority counsel, asked each of the three Democratic witnesses about three specific potential impeachable offenses: abuse of power, obstruction of justice, and obstruction of Congress. Karlan, Feldman, and Gerhardt all agreed that President Trump has committed each of these offenses, and that each warrants impeachment. They also suggested that President Trump’s actions could constitute bribery, if he corruptly solicited something of personal value in exchange for official acts.

Professor Turley, the only witness called by the Republicans, did not deny that the allegations against President Trump, if proven, would warrant impeachment. Instead, he took issue with the House Democrat’s process, the speed at which the inquiry has moved, and the strength of the evidence. In particular, Professor Turley noted that the House has not heard from, and indeed has not subpoenaed, several witnesses who might have direct knowledge of President Trump’s state of mind in his dealings with Ukraine. The testimony of these witnesses could prove or disprove the case against Trump, so, Turley suggested, the House could continue to seek that testimony before taking action one way or another on impeachment.

Professor Turley also disputed, to some degree, the other scholars’ views about the relationship between impeachable offenses and criminal violations. Although at one point he acknowledged that many prior articles of impeachment have not concerned criminal matters, Turley argued that every time a President has been impeached, at least one of the allegations against him has been an actual crime. He, therefore, spent much of his testimony denying that any of the allegations against President Trump meet the statutory definition of any crime, accusing the Democrats—and to some degree the other witnesses—of being willing to ignore the relevant legal standards simply because they dislike the President. In particular, Turley took issue with the suggestion that the House could impeach Trump for obstruction of Congress, rather than allowing the President to pursue his claims of executive privilege in the courts, saying that such an impeachment would itself be an abuse of power by Congress.

Turley’s performance and arguments, however, have been widely criticized, both by fellow impeachment scholars such as Professor Larry Tribe, ––and many pointed, for instance, to a 2014 article Turley wrote calling the view that criminal violations are required for impeachment a “myth”—and even by some commentators such as Fox News legal experts Andrew Napolitano and Andrew McCarthy.

As Speaker Pelosi’s announcement shows, House Democrats feeling confident moving forward on impeachment in the wake of Wednesday’s hearing. The next step will apparently be a hearing in the Judiciary Committee on Monday, December 9, at which the Intelligence Committee will present its findings. Very possibly some of the other committees that have been investigating the President will have an opportunity to present their findings as well. This could include Rep. Maxine Waters’ Financial Services Committee, which has been litigating in court seeking President Trump’s financial records and on Tuesday received a favorable ruling from the Second Circuit Court of Appeals.

Once the Judiciary Committee has received the reports of these investigations, it will draft articles of impeachment, and Wednesday’s hearing suggested how the Democrats are thinking on that score. Majority counsel Eisen’s questioning focused on abuse of power, bribery, obstruction of justice, and obstruction of Congress, and it is not much of a leap to imagine that those charges will be the basis for the articles of impeachment. Speaker Pelosi also suggested during her statement Thursday morning that President Trump may have violated his constitutional obligation to “take Care that the Laws be faithfully executed” by withholding aid to Ukraine that had been appropriated by Congress. It is not clear whether that would constitute its own article of impeachment or would simply be a part of the article on abuse of power, perhaps along with the related argument, repeated frequently at Wednesday’s hearing, that President Trump has violated his oath of office.

It appears that Democrats plan to move swiftly on any articles of impeachment and that we will very likely see the full House vote on the articles before the end of the year, setting up a Senate impeachment trial beginning in January.

Robert Black is Senior Fellow for Constitutional Content at the National Constitution Center.