Somebody really caught in the middle of it, and that doesnt excuse the person from the consequences. Professors, weve talked about abuse of power and bribery. When we started, we said we would also discuss Obstruction Of Congress. So id like to ask you some questions about Obstruction Of Congress. Professor gerhardt, in your view, is there enough evidence here to charge President Trump with the high crime and misdemeanor of Obstruction Of Congress . I think theres more than enough. As i mention in my statement, just to really underscore this, the third article of impeachment approved by the House Judiciary Committee against president nixon charged him with misconduct because he failed to comply with four legislative subpoenas. Here it is far more than four that this president has failed to comply with and hes ordered
the Executive Branch as well not to cooperate the congress. Those together with a lot of other evidence suggests Obstruction Of Congress. Professor karlan, do you agree . Im a scholar of the law of democracy. So as a citizen, i agree with what Professor Gerhardt said. As an expert, my limitation is that im a scholar of the law of democracy. Im not a scholar of Obstruction Of Justice or Obstruction Of Congress. We will accept your opinion as a citizen. Professor feldman, the Obstruction Of Congress is a problem because it undermines the basic principle of the constitution. If youre going to have three branches of government, each of the branches has to be able to do its job. The job of the house is to investigate impeachment and to impeach. A president who says as this president did say i will not cooperate in any way, shape or form with your process robs a
coordinate branch of government. He robs the House Of Representatives of its basic constitutional power of impeachment. When you add to that the fact that the same president says my Department Of Justice cannot charge me with a crime, the president puts himself Above The Law when he says he will not cooperate in an Impeachment Inquiry. I dont think its possible to emphasize this strongly enough. A president who will not cooperate in an Impeachment Inquiry is putting himself Above The Law. Now, putting yourself Above The Law as president is the core of an Impeachable Offense because if the president could not be impeached for that, he would in fact not be responsible to anybody. Sir, in forming your opinion, did you review these statements from President Trump . Were fighting all the subpoenas. Then i have an article two where i have the right to do whatever i want as president. I did. And as someone who cares about
the constitution, the second of those in particular struck a kind of horror in me. Professor gerhardt, informing your opinion that President Trump has committed the Impeachable Offense of Obstruction Of Congress, did you consider the Intelligence Committee report and its findings including finding nine that President Trump ordered and implemented a campaign to conceal his conduct from the public and to frustrate and obstruct the House Of RepresentativesImpeachment Inquiry. I read that report last night after i submitted my statement, but i watched and read all of the transcripts that were available. The report that was issued reinforces Everything Else that came before it, so yes. So weve talked first about abuse of power and bribery and then about obstruction of
congress. Professor gerhardt, id like to now ask you some questions about a third Impeachable Offense, and that is Obstruction Of Justice. Sir, have you formed an opinion as to whether President Trump committed the Impeachable Offense of On Instructibstructi justice . Yes, i have. What is your opinion, sir . Ive come here like every other witness assuming the facts that have been put together in official reports. The Mueller Report cites a number of facts that indicate the president of the United States obstructed justice. Thats an Impeachable Offense. In your testimony, sir, you pointed out that the Mueller Report found at least five instances of the president s obstruction of the justice departments criminal investigation into russian interference in the 2016 election, correct . Yes, sir. And the first of those instances was the president s
ordering his then White House Counsel Don Mcgahn to fire the Special Counsel in order to thwart the investigation of the president , correct . That is correct. And the second was the president ordering mr. Mcgahn to create a false written record denying that the president had ordered him to have mr. Mueller removed . Thats correct. And you also point to the meeting of the president with his former campaign manager, Corey Lewandowski in order to get him to take steps to have the investigation curtailed, right . Yes, sir, i did. You also point to pardon dangling and Witness Tampering as to Paul Manafort and michael cohen, former campaign official, former personal lawyer of the president. Both individually and collectively, these are evidence of Obstruction Of Justice. How serious is that evidence
of Obstruction Of Justice, sir . It is quite serious. Thats not all of it, of course. And we know, as youve mentioned before and others have mentioned, Obstruction Of Justice has been recognized as an Impeachable Offense both against president clinton and president nixon. This evidence thats been put forward by mr. Mueller thats in the Public Record is very strong evidence of Obstruction Of Justice. Professor karlan, when you look at the Department Of JusticeRussia Investigation and how the president responded to that and when you look at Congress Ukraine investigation and how the president responded to that, do you see a pattern . Yes. I see a pattern in which the president s views about the propriety of foreign governments intervening in our election process are the antithesis of what our framers were committed to. Our framers were committed to the idea that we as americans,
we as americans decide our elections. We dont want foreign interference in those elections. The reason we dont want foreign interference in those elections is paubecause were a selfdetermining democracy. If i could just read one quotation to you that i think is helpful in understanding this, its somebody whos pointing to what he calls a straightforward principle. It is fundamental to the definition of our National Political community that foreign citizens do not have a constitutional right to participate in and thus may be excluded from activities of democratic selfgovernment. And the person who wrote those words is now Justice Brett kavanaugh. In upholding the constitutionality of a statute that denies foreign citizens the right to participate in our elections by spending money in electioneering or giving money to pacs. They have long been forbidden
from giving contributions to candidates. The reason is that denies us the right to selfgovernment. Justice Brett Kavanaugh was so correct in seeing this. They didnt even need to hear argument to know its constitutional to keep foreigners out of our election process. Professor feldman, you were somewhat of an Impeachment Skeptic at the time of the release of the Mueller Report, were you not . I was. Whats changed for you, sir . What changed for me was the Rev Haitielation of the july 25l and the evidence that emerged subsequently of the president of the United States in a format where he was heard by others and now known to the whole public openly abused his office by seeking a personal advantage in order to get himself reelected and act against the National Security of the United States. That is precisely the situation
that the framers anticipated. Its very unusual for the framers predictions to come through that precisely. And when they do, we have to ask ourselves some day we will no longer be alive and well go wherever it is we go, the good place or the other place. We may meet there madison and hamilton and they will ask us when the president of the United States acted to corrupt the structure of the republic, what did you do . And our answer to that question must be that we followed the guidance of the framers and it must be that if the evidence supports that conclusion, that the House Of Representatives moves to impeach him. Thank you. I yield my time back to the chairman. Before i recognize the Ranking Member for his first round of questions, the committee will stand in a 10minute humanitarian recess. [ laughter ] i ask everyone in the room to please remain seated and quiet while the witnesses exit the room. I also want to announce to those in the audience that you may not be guaranteed your seat if you leave the hearing room at this time. Once the witnesses have left the hearing room, at this time the committee will stand in a short recess. Good afternoon and with that gavel coming down, im jake tapper in washington. Youre watching special coverage of this historic day in our nations capital. The House Judiciary Committee is holding its first impeachment hearing dealing with President Trump and the ukraine scandal. House Judiciary Committee jerry nadler, democrat of new york, just called a short break. The committee which will be responsible for drafting potential articles of impeachment against the president is hearing right now from four legal scholars, four constitutional experts. Three of those witnesses called by democrats. They testified that President Trumps actions do indeed rise to the level of an Impeachable Offense or offenses. The fourth called by republicans disagreed. We have a lot to talk about. Lets start with jeffrey toobin. What do you make of what we heard so far . If youll septemb pretty dry stuff compared to the Witness Testimony that we heard prior . Really . I love this. Im a law nerd. I hope this goes all day. No. It is a little abstract. But i think there are certain principles that have come through even with Jonathan Turley who is the republicans witness today. The first is that an Impeachable Offense does not have to be a crime. The words in the Constitution High Crimes And Misdemeanors do not refer to a federal criminal
code, because there was no federal Criminal Code when the constitution was promulgated at the end of the 18th century. This is a lot about what the framers intended and why they wrote what they wrote. Right. So i think thats a message that is undoubtedly true. I dont think theres any dispute about that. Since most people are not following who are not students of the constitution, it may be unfamiliar to them. The other point is the issue of abuse of power. Did the president through his interactions with ukraine abuse his power by Conditioning Aid on political advantage . Now, this is where you start to see differences between the democrats and republicans. The three witnesses called by the democrats all say yes. And Jonathan Turley for the republicans i think says no although he didnt really engage
on that much. He said there was insufficient evidence. But he didnt really talk about any of the evidence. The other point is the issue of Obstruction Of Congress. Did the president by refusing to allow witnesses to testify, produce any documents, emails, texts, did he commit an Impeachable Offense by doing that . There i think the three witnesses for the democrats were probably at their best there, because they were talking about how the system of separation of powers cant really exist unless one branch that has the Impeachment Power can do an actual investigation. So i think thats what we learned and i hope it goes so were going to keep talking to the legal team but i want to get some political analysis. Weve seen now some tweets and some reaction from People Associated with the trump campaign. The communications director
saying that the four legal experts are basically like a liberal msnbc legal panel. Youve seen congressman lee zeldon calling them elitist antitrump. Whats your take on the politics of this . Well, i think regardless of their political stance, just the notion of having four academics in the broader goal that democrats have to pull the public along on the idea of impeachment, i cant see it changing much. They had, as you mentioned, the Blockbuster Hearings already in another committee with the actual witnesses, the people who were talking about what happened. And this is fascinating, not just for legal nerds, maybe political nerds too. You can join our team any time. Thank you. Youre so gracious. The fact is that on that broad idea, which is important if there is any chance, as slim as it is, for the democrats to pull over even one republican in the
house, never mind when it gets to a trial in the senate, this is interesting, it is fascinating, not moving when it comes to Public Opinion. I think we also got the clear road map to what the articles of impeachment are going to be, which would be abuse of power, bribery, Obstruction Of Congress and Obstruction Of Justice. Those are the questions that norm eisen was asking of the legal scholars and he was getting clear and direct answers from the three who happened to agree with him on his side of this issue. But i do think we learned some really interesting things about the Framers Of The Constitution. I know history can also be dry to some people, but i thought first of all Professor Karlan was very effective, number one, when she chastised congressman collins, who the ranking republican. When he made the case, oh, you havent had the time to read
all of this. And she said, im insulted by that, of course i have. As if she, a scholar, would appear before congress lets play that sound bite right now. Okay. That everything i know about our constitution and its values and my review of the evidentiary record and here mr. Collins i would like to say to you, sir, that i read transcripts of every one of the witnesses who appeared in the live hearing, because i would not speak about these things would reviewing the facts. So im insulted by the suggestion that as a Law Professor i dont care about those facts. But everything i read on those occasions tells me that when President Trump invited, indeed demanded, foreign involvement in our upcoming election, he struck at the very heart of what makes this a republic to which we pledge allegiance. That demand, as Professor Feldman just explained, constituted an abuse of power. You see there in her fire why
some people consider her to be the elite of the left. She spoke english. It was how dare you insult me and how dare you insult the rest of us. Were scholars. Were not members of congress. We actually read the things were supposed to read before we testify. She also made another point which i wasnt aware of which is why the Framers Of The Constitution said that you can serve in government in any job including Secretary Of State if youre naturalized except for one job, which is the president of the United States. You have to be a natural born citizen. The reason for that is that because they were so worried about foreign influence. I didnt know that. Do you see this moving the needle at all in the middle of pennsylvania . I mean, is this having any effect on voters . We have not seen that so far. To your point, no offense to the legal team, the Witness Testimony laying out the facts, those were very compelling witnesses and it moved the dial none. Will having these very smart attorneys saying go back to the constitutional convention, the framers, the federalist papers, this is what they were worried about. Maybe. But you do see proof that nothing is moving in that room and even the attack by Professor Karlan, she was insulted understandably so, on the republican member, republicans will take that as liberal witness attacks republican congressman. These procedural votes, the republicans keep forcing procedural votes. What does it do . It gets every republican member on that committee to say in the republican tribe. This is what republicans want. They dont argue the facts. They make up their own facts. They just want to keep the votes where they are. Lets talk about the opinions
right now. It does seem like the three experts calling for impeachment are doing so for what different reasons. Each one of them has a different interpretation. Professor karlan suggested that President Trump abused his office, betrayed the National Interest and tried to corrupt the Electoral Process. Shes an expert on voting. Professor gerhardt said the president committed bribery, abuse of power and obstructing justice. Then you have noah feldman from Harvard Law School basically focusing on abuse of the office of presidency because he was using his office to seek a personal political and electoral advantage over former Vice President biden. Am i wrong that they all are kind of bringing different arguments to this . I think all three of them are asserting that there is an abuse of the president s authority. I do think that Professor Gerhardt has focused his remarks more on obstruction and the importance of checks and balances. So hes trying to explain why the president s insistence that witnesses not come before congress and why the administrations not handing of documents constitutes obstruction and why that is a constitutional problem, because then the president would not be accountable to anyone. I think they are bringing different perspectives. I really am intrigued by Professor Karlans emphasis on the relevance to elections in particular and why the facts in this particular impeachment are so directed towards the potential corruption of the Electoral Process. Because the argument shes making is that the Electoral Process is so central to the functioning of our democracy, and so then if the president took actions which she believes he did that subverts those
elections, that is a foundational problem that represents his abuse of office. Ive heard democrats make this argument which is republicans argue, hey, if you dont like the president s behavior, theres an election coming up in less than a year, resolve it there. And democrats say the president is being impeached for trying to cheat in that election, yet you want us to rely upon that election to settle this. I think its one of the questions that we havent seen so far that will be interesting to ask each of the panelists, is whether and to what extent if at all the fact that we have an election coming up matters. I think there are arguments on both sides. I think we may hear from Professor Turley maybe that the framers took into account the fact that we were going to have relatively quick elections. That was one of the main things that distinguished the president from a king, but that you needed
an Impeachment Procedure in case something happened in between elections that required the protection of the country and the removal of the president. And the fact that we do have an election coming up relatively soon introduces a dynamic into the equation where one question that will be is can we wait to let the voters decide, or is this such an urgent and serious issue that we need to act now . In a way, that undercuts Professor Turleys argument that were all moving too fast here. I r i think an impeachment should be a very quick effort to get the facts, to get an understanding, because its not something that you play out over a lot of time. Professor feldman answered that question and said you cant wait because this would affect the president s own reelection. What the president was trying to do was affect his own reelection. That is why the election itself becomes irrelevant. Turley in his Written Statement says the fact that democrats are not willing to wait for the court system to play this out, he called it tragically moronic. Theres one other thing that if there is any movement for Public Opinion and or members of congress to move, this could be a salient point that almost all, the three on the left of your screen made which is the White House Defense and the republican defense on the hill is it didnt happen. So what . It didnt even happen. The money was released. He didnt hold it up. And each of them gave very specific examples, metaphors, what have you, about the fact that that doesnt matter. The attempt itself is the impeachable act, is one of the
quotes. If you are to trust in them as academics that could undercut the republican argument. One of the things weve heard from republicans on capitol hill is not only that the money was released, but also certain things that dont really pass the smell test such as President Trump is really truly worried about corruption. This is a man obviously a president whose former campaign chair, deputy chair, National Campaign advisoadvisor, lawyer,s are either in jail or facing prison. So the questions about his curiosity and opposition to corruption i think are at least questionable. But republicans are more unified now against impeachment, i think more so than ive ever seen them throughout the entire trump era, including from the moment candidate trump came down that escalator until now. Ive never seen them this unified. The proximity to the election which has some democrats nervous, the proximity to the election is keeping republicans so close to the president because if they turn on him, they know he will turn on them. Plus they know if theres dissolution in the base, the closer we get to the election they have now decided this is trumps republican party. There is no room for everybody else in trumps republican party. They figured that out so they are stuck with him, if you will. It will be interesting to go forward to see how many republicans say the president was perfect, the president did nothing wrong. You havent heard from Fact Witnesses. Whats your rush, youre racing the process. He didnt say theres flog. He just said youre not doing this right. The republican loyalty has
increased. The fact that even the retiring republicans are putting on the table the possibility of splitting, well see if it happens, but theres zero indication right now that t 9 of republicans are with the president out in the country. To prove your point, even House Republicans on the Intelligence Committee who expressed misgivings about President Trumps call, Congressman Turner from ohio, Congressman Hurd from texas signed off on the republican Intelligence Committee report which was basically pages that just said President Trump is perfect and hes done nothing wrong. That report belongs in the fiction section. You can argue and im looking forward to the argument about is this an Impeachable Offense. Thats a legitimate argument. Its worth focusing on a little bit of the irony of Professor Turleys arguments. One of the argument is that congress should be taking more evidence, should be taking more witnesses, shinzo a should be g more documents. Many of the potential articles of impeachment will focus on the president S Obstructive acts precisely because the administration has not produced witnesses and has not produced documents. Its a little bit of a circular argument in that its hard to complain about the lack of a record when the administration has been obstructive in not helping to create that evidence. In fact, if anybody out there wants to go online and read the house Intelligence Committees impeachment report, go to page 217 and youll see page after
page of lists of documents that the celebration refused to send, including former ambassador bill taylors notebook. That was not allowed i think the republican retort to that will be that every president since washington has asserted some manner of Executive Privilege. Theyll note that the previous Attorney General the Attorney General under the Obama Administration had actually been held in criminal contempt of congress. Eric holder. Eric holder. And that we shouldnt and cant start impeaching president s for asserting privileges and immunities especially when for example the white House Counsel agrees with that and that its up to the democrats to go to court if they dont agree. But we have never ever seen any administration, including Richard Nixon while he was under impeachment investigation, including bill clinton when he
was under investigation, issue a Blanket Refusal to produce no witnesses, to produce no documents, to produce no emails, texts. Yes, it is true that there are legitimate grounds for dispute about each perhaps certain of the documents that the house has sought. But the idea that it is a legitimate exercise of Executive Authority to shut down cooperation completely can i just point out how differents that from t s thathi Mueller Report . Were going to let people testify, were going to let them talk to mueller, were going to provide all the documents. Dont think theyre not directly related. Of course theyre related because then they read it. Why did we do that . Maybe we shouldnt have done that. So now theyre taking the
opposite tack and claiming privilege on everything. That shows you what they actually think about the Mueller Report which even though people claim it clears them. They know its much more damning than that. Lets listen in. Or his counsel have 45 minutes to question the witnesses. Ranking member. Thank you, mr. Chairman. Before i begin on the question, i do want to revisit a comment made earlier by you mr. Chairman. It was our demand for a minority hearing day. You said you would rule on it later. The rules of the house do not permit a ruling on this, they do not permit a vote and you cannot shut it down. According to your own words it guards against the majority from abusing its power. Call it being the fair and balanced rule. Its not the chairmans right to decide whether prior hearings
were sufficient. It is certainly not the chairmans right to violate the rules in order to interfere with our right to conduct a hearing. I look forward to you getting that scheduled expeditiously. Moving on, interesting part, now we hit phase two. Youve had one side and i have to say it was eloquently argued by not only the counsel and by the witnesses involved, but this is always a phase two. A phase two is what is problematic here, because as i said in my opening statement, this would be for many one of the most disputed impeachments on just the facts themselves. What was interesting is we actually showed videos of witnesses. In fact, one of them was in opening statement, which again, the closest thing to perfect is an opening statement. We didnt talk anything about kurt volker, who said nothing
about it. We said nothing about the aid being held up. Morrison, who Contradicted Vindman and others, were not going to do that. Theres still evidence being withheld by adam schiff that has not come to this committee and we still Havent Fgotten any of the underlying stuff. One being the very important part is the inspector general. His testimony is still being held and theres a quote secret on it or theyre holding it in classification. We have plenty of places in this building and other buildings to handle classified information if they still want to do that. Anybody in the media, anybody watching today, the first 45 minutes we went through have painted a very interesting
picture. Its painted an interesting picture that goes back many, many years. It paints an interesting picture of picking and choosing what we want to talk about. And thats fine. Professor turley, youre now well rested. You got one question. You were asked a yesno on it. Lets just do this. Elaborate, if you would, because you tried to on the question that was asked to you. And then if theres anything else youve heard this morning that you would disagree w i would go ahead and allow you some time to talk. Just for the information, mr. Chairman, this is the coldest hearing room in the world. Also for those of you worried about im uncomfortable and upset, im happy as a lark but this chair is terrible. I mean, it is amazing. Its a challenge to think of anything i was not able to cover in my Robust Exchange with
majority counsel but id like to try. Go right ahead. Theres a couple of things i just wanted to highlight. Im not going to take a great deal of time. I respect my colleagues. I know all of them and i consider them friends and i certainly respect what they have said today. We have fundamental disagreements and id like to start with the issue of bribery. The statement has been made not just by these witnesses but Chairman Schiff and others that this is a clear case of bribery. Its not. Chairman schiff said that it might not fit todays definition of bribery, but it would fit the definition back in the 18th century. I think that it might come as a relief to him and his supporters that his career will be a short one, that there is not an
originalist future in that argument. The Bribery Theory Being put forward is as flawed until 18th sear century as it is in this century. The statement made by one of my esteemed colleagues was that bribery wasnt really defined until much later. There is no Bribery Statute and that is certainly true, but it obviously had a meeting. Bribery was not this overarching concept that Chairman Schiff indicated. Quite to the contrary, the original standard was trae son and bribery. That led mason to object that it was too narrow. If bribery could include any time you did anything for personal interest instead of public interest, if you have this overarching definition, that exchange would have been completely useless. The framers didnt disagree with masons view. What they agreed was was when he suggested James Madison said thats too broad. That that would essentially create what you might call a vote of noconfidence in england. It would require congress to toss out a president they did not like. Were all canhannelling the intt of the framers. Thats always a dangerous thing to do. The only more dangerous spot is between congress and an impeachment as an academic. But i would offer instead the word of the framers themselves. You see in that exchange they didnt just say bribery was too narrow. They actually gave an example of bribery and it was nothing like what was described. When the obstructijection was m
madison, ultimately the framers agreed. And then morris, who was referred to earlier, did say we need to adopt this standard. But what was left out was what came afterwards. Morris said we need to protect against prescribe Bribery Becaut want what happened with louis xiv. What happened in that example that morris gave as his example of bribery was that louis xiv who was a bit of a recidivist when it came to brides gave charles ii a huge amount of money as well as other benefits including apparently a french mistress in exchange for the
secret Treaty Of Dover of 1670. It always was a reason for him converting to catholicism. I dont think that dog will hunt in the 18th century and i dont think lit hunit will hunt today. When you take a Loa Case Called Mcdonalds Versus the United States, the Supreme Court looked at a public corruption bribery case. This was a case where gifts were actually received, benefits were actually extended. There was completion. This was not some hypothetical of a crime that was not fulfilled or an action that was not actually taken. The Supreme Court unanimously overturned that conviction. Unanimously. What they said was that you cannot take the prescribe ri crime and use what they called a boundless interpretation. All the justices said it was a dangerous thing to take a crime like bribery and use a boundless interpretation. So what i would caution the committee is that these crimes have meaning. It gives me no joy to disagree with my colleagues here and i really dont have a dog in this fight. But you cant accuse a president of bribery, then when some of us note that the Supreme Court has rejected your type of boundless
interpretation, say, well, its just impeachment. We really dont have to prove the elements. Thats a favorite mantra that is sort of close enough for jazz. Well, this isnt improvisational jazz. Close enough is not good enough. If youre going to accuse a president with bribery, you need to make it stick because youre trying to remove a duly elected president of the United States. Its unfair to accuse someone of a crime and when others say, well, those interpretations are not valid and say they dont have to be valid because this is impeachment. That has not been the standard historically. My testimony lays out the criminal allegations in the previous impeachments. Those were not just proven crimes, they were accepted
crimes. That is even the democrats on the Judiciary Committee agreed that bill clinton had committed perjury. Thats on the record and a federal judge later said it was perjury. In the case of nixon, the crimes were established. No one seriously disagreed with those crimes. Johnson is the outlier because johnson was a trap door crime. They basically created a crime knowing that johnson wanted to replace Secretary Of War stanton. And johnson did because they had several trouble in the cabinet. So they created a trap door crime, waited for him to fire the Secretary Of War and then impeached him. So i would caution you not only about bribery but also obstruction. Ranking member, you no. Youre doing a good job. Go right ahead. Id also caution you about obstruction. Obstruction is a crime with meaning. It has elements. It has case authority. The record does not establish obstruction in this case. What my esteemed colleague said was certainly true. If you accept all of their presumptions, it would be obstruction. But impeachments have to be based on proof, not presumpti s presumptions. Thats the problem when you move forward on this abbreviated schedule which has not been explained to me why you want to set the record for the fastest impeachment. Fast is not good for impeachment. Narrow, Fast Impeachments Have failed. Just ask johnson. So the Obstruction Issue is an example of this problem. He heres my concern. The theory being put forward is
that President Trump instructed congress by not turning over material requested by the committee. Ift to confe i want to confess. My hair catches on fire every time someone mentions the third article. Why . Because you would be rely kate g i replicating one of the worst articles written on impeachment. Heres the reason why. The chairman of judiciarys position was that congress alone decides what information may be given to it. Alone. His position was that the courts have no relate ole in this. By that theory, any refusal by the president on immunts would be the basis of impeachment. President trump has gone to the courts. Hes allowed to do that. We have three branches not two. I happen to agree with some of your criticism about President Trump including that earlier quote. Hes saying theres this article two and he gives this overriding interpretation. I share that criticism. Youre doing the same thing with article i. Youre saying article i gives us complete authority that when we demand information from another branch, it must be turned over or well impeach you in record time. Making that worse is you have such a short investigation. Its a perfect storm. You set an incredibly short period, demand a hunl amount of information and when the president goes to court you then impeach him. Does that track with what youve heard about impeachment . Does that track with the rule of law that we talked about . On obstruction i would encourage you to think about this. In nixon it did go to the courts and nixon lost. And that was the reason nixon resigned. He resigned a few days after the Supreme Court ruled against him in that critical case. But in that case, the court recognized there are Executive Privilege arguments that can be made. It didnt say you had no right coming to us, dont darken our doorstep again. It said weve heard your arguments, weve heard congresss arguments and you know what . You lose. Turn over the material to congress. What that did for the judiciary is it gave this body legitimacy. It wasnt the rodino extreme
position. Recently there are some rulings against President Trump including a ruling involving don mcgahn. Mr. Chairman, i testified before you a few months ago. We had an exchange and i encouraged you to bring those actions. You said you thought youd win. You did. Thats an example of what can happen if you actually subpoena witnesses and go to court. Then you have an Obstruction Case because a court issues an order. And unless they stay that order by a higher court, you have obstruction. But i cant emphasize this enough and ill say it just one more time. 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. Its your abuse of power. Youre doing precisely what youre criticizing the president for doing. We have a third branch that deals with conflicts at the other two branches. What comes out of there and what you do with it is the very definition of legitimacy. Lets continue on. Lets unpack what youve been talking about. First of all, the mcdonald case, how was that decided . It came out unanimous. One of the things that you said also and i think it could be summed up with facts dont matter. Thats what i heard a lot in the 45 minutes. I think your word was crimes have meanings and i think this is the concern that i have. Is there a concern that if we
just say that facts dont matter, that were also as youve said abusing our power as we go forward here in looking at what people would actually deem as an Impeachable Offense . I think so. Part of the problem is that to bring a couple of these articles, you have to contradict the position of President Obama. President obama withheld evidence from congress in fast and furious, an investigation, a rather moronic program that led to the death of a federal agent. President obama gave a sweeping argument that he was not only not going to give evidence to this body, but that a court had absolutely no role in determines whether he could withhold the evidence. I have a question on that. You brought up mr. Obama and other president s. Is there not an obligation by the Office Of The President well just use that term. Isnt there an obligation by the president to actually assert the constitutional authorities that have been given when accused of something, a crime or anything else . I think President Obama has invoked too broadly. But on the other hand he has actually released a lot of information. Ive been friends with bill barr for a long time. We disagree on Executive Privilege. Im a madisonian scholar. I tend to favor congress in disputes. Hes the invert. His natural default is article two. My natural divert is art one. But he has released as much information as any in my lifetime including the Mueller Report. Thats something thats again not pointed out when youre doing a back and forth like were doing. The transcript of the call released, the things that have been released in the mueller. As we go back through this, there has been work and progress. Even internally we have had committees not being to let members see transcripts, not being willing to give those up aurpd the guise of impeachment. The timing issue that youve talked about here. Again, i believe we talked about this with the Mueller Report. This is one of the fastest were on a clock. The clock and the calendar are seemingly dominating this. Its irregardless of what anybody on this committee to think about what were actually seeing of Fact Witnesses and people moving forward. So the question becomes is an election pending when facts are in dispute and you made a
mention of this. This is one in which the facts are not unanimous. Does that timing bother you from a Historical Perspective not only in the past but moving forward as well . Yeah. Fast and narrow is not a good recipe for impeachment. Thats the case for johnson. Narrow was the case for clinton. They tend not to survive. Theres a foundation between your foundation and your height. This is the congressest structure you can build. This is the narrowest impeachment in history. Johnson might actually be the fastest impeachment. Johnson actually what happened to johnson was actually the fourth impeachment attempt against johnson. The record goes back a year before. They laid that trap door a year before, so it was not as fast as it might appear. Again, i want to go back to something else. You talked about bribery. I want to go pack to something that you talked about. I think the perception out there of whats going on here and the disputed transcript the call has been head out there. There is one thing thats interesting. Its been reported in the mainstream media. It goes back to your issue of crimes matter of what is this definition. As reported they used a Political Focus Group to determine whether the phrase polled well. Apparently it didnt poll well so they agreed to change their theory of case to bribery. Does that not just feed into how it should matter . It does. Theres a reason why every past impeachment has established crimes. Its not that you cant impeach on a noncrime. You can. Noncrimes have been part of past impeachments. Its just theyve never gone up alone or primarily. If you prove a quid pro quo, you might have an Impeachable Offense. But to go up only on a noncriminal case would be the first time in history. So why is that the case . The reason is that crimes have an bhished definition and case law. So theres a concrete independent body of law that assures the public that this is not just political, that this is a president that did something they could not do. You cant say the president is Above The Law if you then say the crimes you accuse him up really dont have to be established. I think thats a problem that
the American People are looking at everyone is afforded due process. Everyone is afforded the chance to make their case heard. Weve already seen it voted down that were not going to look at certain Fact Witnesses. Were not promised other hearings in this committee. In the word from the chairman where he did not want to take the advice of another body or entity giving us the Judiciary Committee as a report and acting as a rubber stamp if we didnt do this. It was almost 2 1 2 weeks before the discussion of this kind of hearing before the hearing actually took place. I think the obvious point here is that timing is becoming more of the issue because of the concern as has been stated before about elections. Theyre more concerned about trying to fit the facts in to what the president supposedly
did and make those hypotheticals stick to the american public. The problem is their timing and the definition as defined by the Supreme Court is not making their case. Its not fitting what they need to do. The issue we have to deal with Going Forward is why the rush . Why do we still not have the information from the Intelligence Committee . Why is it being withheld even in a chlassified setting. Both sides matter. And at the end of the day this is a fast impeachment, the fastest weve seen based on disputed facts on crimes or disturbances that are made up with the facts to fit each part. With that im going to turn it over to my counsel mr. Taylor. Professor turley, id like to
turn to the subject of partisanship. Its a subject Alexander Hamilton was concerned about. He wrote some words advocating for the ratification of the constitution, the federalist papers laid out the reasons madison and principally hamilton thought the Impeachment Clause was necessary, but he also flagged concerns. He said in many cases of impeachment, it will connect itself with the preexisting factions and will enlist all their animosities, partialities, influence and interest on one side. Where in the other in such cases there always will be the greater danger that the decision will be made more pi tby the strength o parties than by innocence or guilt. Do you think hamilton predicted a real danger here . Certainly that has proven to be the case certainly of the two
impeachments we have seen. Its also important to note that we often think our times are unique. This provision wasnt just written for times like ours. It was written in times like ours. These are people that were even more severe than the rhetoric today. Jefferson referred to the administration of the falli isft as the reign of the witches. This is not a period when people didnt have strong feelings. When people talk about members of this Committee Acting like they want to kill each other, back then they were actually trying to kill each other. Thats what the sedition law was. You were trying to kill people that kiss agreed widisagreed wi. They didnt have a whole slew of impeachments. They knew not to do it. Thats a lesson that can actually be taken from that period, that the framers created
a standard that would not be endlessly fluid and flexible. That standard has kept us from Impeachments Despeed Speerds in which we have really despised each other. Theres so much more rage than reason. You cant even talk about those issues without people saying you must be in favor of the ukrainians taking over the country or the russians moving into the white house. At some point as a people, we have to have a serious discussion about the grounds to remove a duly elected president. In your testimony you said that when it comes to impeachment, we dont need happy idealogical warriors. We need circumstance spepect le analysis. Lets take a look at the deeply partisan landscape. The Democratic Leaders pushes trumps impeachment represent some of the most far left urban
cultural areas of the country. As you can see the parts of the country represented by these Democrat Impeachment leaders voted overwhelmingly for Hillary Clinton during the last president ial election. Also during the 2016 president ial election Lawyer Campaign contributions tilted 97 for clinton, 3 for trump. The situation is essential hi the same at law schools around the country including those represent represented on the panel here today. This is how the nixon impeachment evident was described in the bipartisan 19734 staff report. It says this action was not partisan it was supported by the overwhelming majority of both political parties. And it was. Regarding the authorization of