Key Excerpts From Legal Scholars’ Arguments on Impeachment

WASHINGTON — The four law professors who testified before a House panel on Wednesday, three invited by Democrats and one by Republicans, gave an overview of the history of impeachment, the practical justifications for it and their views on whether President Trump’s conduct in the Ukraine affair warranted it.

There was broad agreement about what the Constitution requires, though the two sides differed about whether the evidence to date had established that Mr. Trump had crossed the constitutional threshold for impeachment.

Still, even the Republicans’ witness said a more detailed and deliberate inquiry could put Mr. Trump in peril. “The use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense,” said Prof. Jonathan Turley, a law professor at George Washington University and the witness invited by the minority.

Here are some of the key excerpts, with context, from the prepared opening statements that each panelist submitted for the record.

What is an impeachable offense?

Article II, Section 4 of the Constitution allows Congress to impeach and remove federal officials who commit “treason, bribery, or other high crimes and misdemeanors.”

The phrase does not encompass every ordinary crime, the professors said. But the two specific offenses — bribery and treason — give a good sense of the kinds of crimes the framers of the Constitution had in mind. Those are crimes against the state, the justice system and democracy itself that undermine the ability of the government to function.

Prof. Noah Feldman, of Harvard Law School, outlined the core concerns of the framers.

Professor Feldman: The essential definition of high crimes and misdemeanors is the abuse of office. The framers considered the office of the presidency to be a public trust. Abuse of the office of the presidency is the very essence of a high crime and misdemeanor.

Beyond the case of abuse of office for personal gain, the framers understood that abuse of office could take a variety of other forms. Other forms of abuse of office include the use of the office of the presidency to corrupt the electoral process or to compromise the national interest or national security.

Prof. Michael J. Gerhardt, of the University of North Carolina, said the framers were not concerned with ordinary crimes.

Professor Gerhardt: In his influential essay in the Federalist Papers, Alexander Hamilton declared that impeachable offenses are “those offenses which proceed from the misconduct of public men, or, in other words, the abuse or violation of some public trust” and “relate chiefly to injuries done immediately to the society itself.”

Prof. Pamela S. Karlan, of Stanford Law School, said the framers were deeply concerned about a president’s corrupt use of official power for personal advantage.

Professor Karlan: The list of impeachable offenses that the framers included in the Constitution shows that the essence of an impeachable offense is a president’s decision to sacrifice the national interest for his own private ends. “Treason,” the first thing listed, lay in an individual’s giving aid to a foreign enemy — that is, putting a foreign adversary’s interests above the interests of the United States. “Bribery” occurred when an official solicited, received, or offered a personal favor or benefit to influence official action — risking that he would put his private welfare above the national interest. And “high crimes and misdemeanors” captured the other ways in which a high official might, as Justice Joseph Story explained, “disregard … public interests, in the discharge of the duties of political office.”

Professor Turley focused on the word “other” in the phrase “treason, bribery, or other high crimes and misdemeanors,” saying the earlier specific examples gave content to the later, more abstract terms.

Professor Turley: The word “other” reflects an obvious intent to convey that the impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts).

Considering constitutional history

Professor Feldman started with the most fundamental principle: By constitutional design, he said, the president is not beyond the reach of the law.

Professor Feldman: The biggest difference between the English tradition of impeachment and the American constitutional plan was that the king of England could not be impeached. In that sense, the king was above the law, which only applied to him if he consented to follow it. In stark contrast, the president of the United States would be subject to the law like any other citizen. The idea of impeachment was therefore absolutely central to the republican form of government ordained by the Constitution. Without impeachment, the president would have been an elected monarch. With impeachment, the president was bound to the rule of law. Congress could oversee the president’s conduct, hold him accountable and remove him from office if he abused his power.

Professor Gerhardt said the American Revolution was fought to ensure that the new nation would be able to hold its chief executive accountable for wrongdoing.

Professor Gerhardt: A people, who had overthrown a king, were not going to turn around, just after securing their independence from corrupt monarchial tyranny, and create an office that, like the king, was above the law and could do no wrong. The framers created a chief executive to bring energy to the administration of federal laws but to be accountable to Congress for “treason, bribery, or other high crimes and misdemeanors.”

The framers were, Professor Karlan said, deeply concerned about the possibility of foreign influence on American elections and officials.

Professor Karlan: The founding generation, like every generation of Americans since, was especially concerned to protect our government and our democratic process from outside interference. For example, John Adams during the ratification expressed concern with the very idea of having an elected president, writing to Thomas Jefferson that “you are apprehensive of foreign interference, intrigue, influence. — So am I — But, as often as elections happen, the danger of foreign influence recurs.” And in his farewell address, President Washington warned that “history and experience prove that foreign influence is one of the most baneful foes of republican government.” And he explained that this was in part because foreign governments would try and foment disagreement among the American people and influence what we thought. The very idea that a president might seek the aid of a foreign government in his re-election campaign would have horrified them. But based on the evidentiary record, that is what President Trump has done.

But Professor Turley said the framers had rejected broader grounds for impeachment.

Professor Turley: In the end, the framers would reject various prior standards including “corruption,” “obtaining office by improper means,” betraying his trust to a foreign power, “negligence,” “perfidy,” “peculation” and “oppression.” Perfidy (or lying) and peculation (self-dealing) are particularly interesting in the current controversy given similar accusations against President Trump in his Ukrainian comments and conduct.

Why not let voters decide?

Elections, at least after a president’s first term, can be a referendum not only on his policies and persona but also on accusations that he is corrupt or otherwise unfit. But they are an inadequate substitute for impeachment if the president’s misconduct was aimed at warping the integrity of the election, several professors said.

Professor Feldman described a debate among the framers of the Constitution on whether the mechanism of impeachment was needed in light of the possibility that voters could address presidential misconduct at the next election.

Professor Feldman: The upshot of this conversation in the Constitutional Convention was that the framers believed that elections were not a sufficient check on the possibility of a president who abused his power by acting in a corrupt way. They were especially worried that a president might use the power of his office to influence the electoral process in his own favor. They concluded that the Constitution must provide for the impeachment of the president to assure that no one would be above the law.

Professor Karlan said that impeachment was a deterrent against rigged elections.

Professor Karlan: The framers of our Constitution realized that elections alone could not guarantee that the United States would remain a republic. One of the key reasons for including an impeachment power was the risk that unscrupulous officials might try to rig the election process.

Foreign interference in U.S. elections

The combination of two of the framers’ core concerns — foreign influence on the president and threats to the integrity of elections — can create a combustible problem, Professor Karlan said.

Professor Karlan: Everything I know about our Constitution and its values, and my review of the evidentiary record, 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 country the “republic” to which we pledge allegiance. That demand constituted an abuse of power. Indeed, as I want to explain in my testimony, drawing a foreign government into our election process is an especially serious abuse of power because it undermines democracy itself.

Does President Trump’s conduct warrant impeachment?

The law professors diverged about the bottom line. The three witnesses invited by Democrats said the evidence for impeachment was overwhelming, but Professor Turley said it was inadequate, pointing to what he said was a rushed process.

Professor Turley: If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president.

But, Professor Turley did express uneasiness with aspects of Mr. Trump’s conduct.

Professor Turley: In my view, the references to Biden and his son were highly inappropriate and should not have been part of the call. That does not, however, make this a plausible case for bribery.

The other professors said there was ample evidence to justify impeachment.

Professor Feldman: President Trump’s conduct described in the testimony and evidence clearly constitutes an impeachable high crime and misdemeanor under the Constitution. According to the testimony and to the publicly released memorandum of the July 25, 2019, telephone call between the two presidents, President Trump abused his office by soliciting the president of Ukraine to investigate his political rivals in order to gain personal political advantage, including in the 2020 presidential election. This act on its own qualifies as an impeachable high crime and misdemeanor.

Professor Karlan: The evidence reveals a president who used the powers of his office to demand that a foreign government participate in undermining a competing candidate for the president.
Later she said: [The evidence] shows a president who delayed meeting a foreign leader and providing assistance that Congress and his own advisers 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.

Professor Gerhardt, drawing on the report prepared by Robert S. Mueller III, the special counsel who investigated Russian interference in the 2016 election, and Mr. Trump’s defiance of congressional subpoenas, said the president’s conduct was far worse than what had driven President Richard M. Nixon from office.

Professor Gerhardt: 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. Even President Nixon agreed to share information with Congress, ordered his subordinates to comply with subpoenas to testify and produce documents (with some limited exceptions), and to send his lawyers to ask questions in the House’s impeachment hearings. The fact that we can easily transpose the articles of impeachment against Nixon onto the actions of this president speaks volumes — and that does not even include the most serious national security concerns and election interference concerns at the heart of this president’s misconduct.

Professor Turley rejected the comparisons to Nixon’s misdeeds.

Professor Turley: While the Ukrainian controversy could still establish impeachable conduct, it undermines that effort to distort the historical record to elevate the current record. Indeed, the comparison to the Nixon inquiry only highlights the glaring differences in the underlying investigations, scope of impeachable conduct and evidentiary records with the current inquiry. It is a difference between the comprehensive and the cursory; the proven and the presumed. In other words, it is not a comparison the House should invite if it is serious about moving forward in a few weeks on an impeachment based primarily on the Ukrainian controversy.

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