Friday, December 6, 2019

Why Wednesday's panel of constitutional scholars gets 3.5 out of 4 stars

I’m going to award Wednesday’s panel of constitutional scholars 3.5 stars. I would have given it 4.0 but for the dissent from Jonathon Turley whose presence was requested by the GOP members of the Judiciary Committee. But I didn’t give it a 3.0 (which would have credited Turley with a full-on dissent) because his weak dissent played partly into the case for impeachment. Here are highlights from three accounts of the scholar’s testimonies.

Kim Wehle at The Bulwark views what the Constitutional Scholars Explain: This Is Just Why We Have Impeachment Today’s Judiciary Committee hearing highlighted the constitutional stakes in the Trump impeachment process.

Today’s impeachment hearing before the House Judiciary Committee was a landslide win for the U.S. Constitution. Three constitutional scholars and law professors—Noah Feldman of Harvard, Pamela Karlan of Stanford, and Michael Gerhardt of the University of North Carolina (who is also an author of a leading book on impeachment)—passionately and unequivocally made the case for impeaching President Trump. For a president to ask for election interference from a foreign power is, in Professor Gerhardt’s words, “plainly an abuse of power. It’s a rather horrifying abuse of power.”

Speaking at the invitation of the committee’s Republican minority was Jonathan Turley, a law professor at George Washington University (and my colleague at CBS News). The thrust of his argument against impeachment was as follows: The process has been sorely truncated, lots of witnesses and facts have not been revealed, the courts have not definitively weighed in on the White House’s stonewalling of subpoenas, and a case of criminal statutory bribery as construed by the U.S. Supreme Court in 2016 has not been proven.

On the last point, Turley suggested that more direct evidence of the president’s corrupt intent is required to warrant impeachment …

More on Turley’s weak dissent follows below.

Wehle makes several points: “The trio of constitutional scholars who concluded that impeachment is warranted underscored why the possibility of removing Trump in the 2020 election is no answer to his wrongdoing in office …” “The Framers were very worried about foreign interference in elections, which is one factor that distinguishes Trump’s actions from those of the three prior presidents who were subject to impeachment proceedings …” “The impeachment question today is tied directly to the right to vote, which is at the heart of American democracy …” “Trump’s obstruction of Congress is no sideshow. The Framers decided to create not a monarchy but a presidency subject to checks and balances from two other branches of government, … But if a coordinate branch refuses to comply with requests for information needed to execute the impeachment power, that power becomes meaningless. And the presidency becomes a monarchy—or worse, a dictatorship.” “The three experts called by the committee Democrats today all concurred that there are three separate issues that justify the impeachment of President Trump as a constitutional matter …”

Wehle, who herself is a Professor of Law, winds up this way.

The impeachment process now underway is not a one-note complaint, an “impulse buy” on the Democrats’ part (as Turley described it), or (as Turley also put it) a “wafer-thin” factual record being used to unseat a president who was merely exercising his lawful powers to conduct foreign policy. To be sure, the president has vast powers at his disposal. But impeachment exists in the Constitution to address when those powers are abused. The Framers understood the potential for abuse to be part and parcel of human nature and political reality—and they created the remedy of impeachment for situations like the one we now find ourselves in.

Also at The Bulwark, Turley’s Weak Critique takes a hit from Benjamin Parker writing how The legal scholar’s case against impeaching Trump doesn’t hold water.

The Judiciary Committee Republicans were able at times to give an almost colorable defense of the president today. Led by Republican counsel Paul Taylor, Turley offered a reasonable-sounding critique of the impeachment process now underway, with three main points:

1) Because the Democrats have gone too fast, the factual record is incomplete—and inadequate for as momentous an act as removing a democratically elected president.

2) Some of the impeachable offenses that President Trump is being accused of committing—namely, bribery and obstruction of justice—don’t match the way those crimes are defined by law.

3) The impeachment hearings so far have only featured the case against the president, not the case for him.

There were gaping holes in each of Turley’s arguments. Let’s take them in turn:

1) In making the case that the factual record is incomplete, Turley suggested that the Democrats should issue more subpoenas. That would be a more helpful suggestion if the White House weren’t currently blocking key figures in the Ukraine scandal—including former National Security Advisor John Bolton, former Energy Secretary Rick Perry, Secretary of State Mike Pompeo, Acting White House Chief of Staff Mick Mulvaney, and others—from complying with congressional subpoenas. Turley also never made clear what kind or amount of additional information would bridge the gap between what he considers unsubstantiated assertions and what he conceded would be an impeachable offense.

2) Regarding the offenses President Trump is accused of: Back when President Clinton was facing impeachment, Turley argued that an act didn’t have to meet the definition of a crime to be impeachable, as Paul Rosenzweig pointed out to The Bulwark today. Rosenzweig, a former lawyer on Ken Starr’s Whitewater investigation staff, noted by email: “Twenty years ago, Professor Turley wrote that a crime did not have to be committed for an action of the President to be an impeachable offense.” Today, though, Turley insists that for an action to count as bribery under the impeachment clause, it must satisfy the legal definition of the criminal offense of bribery—“an opinion,” Rosenzweig says, “that is manifestly wrong, if only because the impeachment clause was written before we created federal criminal law.” So, Rosenzweig asks of Turley, “What changed? One suspects that the only relevant change was the party affiliation of the President. Situational ethics are … situational.”

3) Even if Turley were correct in his contention that the impeachment hearings have so far not allowed the president’s supporters to make their case, the president’s lawyers could have defended him in the hearings today, if only President Trump hadn’t declined the opportunity to let them do so.

New Yorker author Amy Davidson Sorkin ties it all together in her comment on What the Law Professors Brought to the Trump Impeachment Hearings.

… Turley made a reasonable point about how much more might still be learned. The Democrats had a reasonable reply in ascribing that state of incompletion to the White House’s stonewalling; but there is a whole raft of lawsuits underway on that issue which are beginning to yield defeats for the President.

As much as the Democrats might see the benefit in getting the whole business quickly through the House and on to the Senate, doing so would mean, in a sense, abandoning the goal of achieving anything more than an impeachment with all the Democrats on one side and all the Republicans on the other. That may not be their fault—where Trump is concerned, the Republican Party has taken leave of its senses—but it’s their battle to fight. Will they give it more of a try, with one more Karlan-like jump into the fray? On Thursday morning, Nancy Pelosi said that it was time to draft articles of impeachment.

No comments:

Post a Comment