The House Judiciary Committee convened Wednesday for eight and a half hours of testimony to discuss what the Constitution requires for impeachment. It was an exercise that didn’t reveal any new information on the investigation, but rather laid out the legal justification for Trump’s potential impeachment. The hearing underscored that any eventual impeachment will most likely be partisan. Judiciary Committee Republicans continued the House GOP’s approach of raising procedural complaints and bad-faith attacks on the Democratic witnesses, while the Republican witness argued there isn’t sufficient evidence to justify impeaching Trump. But Democrats made a strong case for the obligation Congress has to impeach, given Trump’s conduct. The three Democratic witnesses all argued that Trump has not only committed impeachable offenses, but that the gravity of the president’s abuse of power made impeachment utterly necessary.
The House Judiciary Majority appeared to telegraph its articles of impeachment by walking the Democratic witnesses through a series of high crimes, and asking if Trump committed them: abuse of power, bribery, obstruction of Congress and obstruction of justice. Later reporting by CNN appears to confirm these are precisely the articles Democrats are considering, with the ultimate say on the article’s structure being determined by House Speaker Nancy Pelosi.
From the beginning of the hearing, Judiciary Chairman Jerry Nadler stressed the urgency of action. “If we do not act to hold him in check now,” Nadler said in his opening statement, “President Trump will almost certainly try again to solicit interference in the election for his personal, political benefit.”
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The Democrats appear poised to take this warning seriously and move forward quickly. According to Politico, in a meeting with Democratic lawmakers about impeachment, Pelosi asked, “Are you ready?” and the members “overwhelmingly” said yes. In an announcement Thursday morning, Pelosi said she’s asking the House Judiciary Committee to “proceed with preparing articles of impeachment,” noting that during the constitutional convention, Gouverneur Morris said, “the Magistrate is not the King … the people are the King.”
When House Democratic Counsel Norm Eisen asked Noah Feldman of Harvard Law School if Trump committed abuse of power, Feldman agreed he had. Feldman said Trump had used “the awesome power of his office” in order to “serve his personal, individual, partisan, electoral interests” when he took congressionally appropriated aid hostage in order to solicit investigations into Joe Biden. Michael Gerhardt from the University of North Carolina added, “We’re talking about an abuse of power that only the president could commit.” He said Trump undertook a “systematic concerted effort” to “remove people that would somehow obstruct or block his ability to put that pressure on Ukraine to get an announcement of an investigation.”
Pamela Karlan of Stanford Law School told Eisen she believed Trump committed bribery. In explaining why, Karlan highlighted what she thought was the “most chilling line” of the scandal: when EU ambassador Gordon Sondland admitted that Trump’s personal lawyer, Rudy Giuliani, wasn’t concerned about an investigation being started or completed; what Giuliani and Trump wanted was a public announcement of an investigation. This made it clear to Karlan that “this was not about whether Vice President Biden actually committed corruption or not,” but instead, “this was about injuring somebody who the president thinks of as a particularly hard opponent.” Rep. Ted Lieu (D-California) noted later in the hearing that while he believes Trump’s conduct meets the standard for criminal bribery, impeachment is a civil proceeding, and thus conduct examined does not need to “meet the standards of a federal bribery statute” in order to be impeachable.
When asked by Eisen if Trump committed obstruction of Congress, Gerhardt agreed he had, and noted that in the Nixon impeachment, House Article III “charged him with misconduct, because he failed to comply with four legislative subpoenas,” while Trump has defied far more than four subpoenas in this impeachment inquiry. On the question of obstruction of justice, Gerhardt noted that “the Mueller Report cites a number of facts that indicate the president of the United States obstructed justice.” Gerhardt also agreed with Eisen that Trump’s “pardon dangling and witness tampering” are also evidence of obstruction of justice.
Karlan noted that when Trump told Ukrainian President Volodymyr Zelensky, “I would like you to do us a favor, though” on July 25, Trump “was using the royal we. It wasn’t a favor for the United States.” Karlan then added that, “Only kings say ‘us’ when they mean ‘me.’”
Trump left the North Atlantic Treaty Organization (NATO) summit early, after being laughed at by fellow NATO leaders. But he wasted no time getting back on Twitter, where he appeared to respond to Karlan’s argument, tweeting his explanation for using the word “us”: “With the word ‘us’ I am referring to the United States” and then went on to explain in a subsequent tweet, “This, based on what I have seen, is their big point — and it is no point at a [sic] all (except for a big win for me!)” It appears Karlan’s point got to Trump.
Throughout the hearing, the Democratic witnesses stressed the consequences of not impeaching Trump. Gerhardt warned, “If what we’re talking about isn’t impeachable, then nothing is impeachable,” and Feldman argued that if a president cannot be impeached for abusing the power of the presidency for personal gain, then “we no longer live in a democracy. We live in a monarchy or we live under a dictatorship.”
Republican witness Jonathan Turley from George Washington University Law School argued that the Committee should slow down in order to hear from more “fact witnesses” who observed Trump’s alleged conduct — witnesses who’ve thus far refused to appear, in defiance of subpoenas. This echoed a complaint by Ranking Member Doug Collins (R-Georgia), who said, “Let’s bring fact witnesses in.” The problem is, many “fact witnesses” in the Trump administration have refused to appear, under orders from the Trump administration.
Nadler had highlighted this “blockade” earlier in the hearing with Gerhardt, who said that “full-scale obstruction of those subpoenas I think torpedoes separation of powers” and that Congress must work to protect their “institutional prerogatives,” and one way to do so is through impeachment. Turley’s argument Wednesday was quite different from when he argued in favor of the Clinton impeachment in 1998, when he said, “You need both political and legal legitimacy to govern” and that Clinton had “deprived himself of the perceived legitimacy to govern.”
Republicans in the Committee used every crumb of an opportunity to direct false outrage at the Democratic witnesses, likely playing for clips on Fox News. In some cases, though, it backfired. Rep. Matt Gaetz (R-Florida) tried to undercut Feldman by raising that in May 2019, Feldman wrote an article called “It’s Hard to Take Impeachment Seriously Now.” This backfired spectacularly, as Feldman pointed out that he was an impeachment skeptic up until the July 25 call. “The call changed my mind, sir, and for good reason,” Feldman said.
In his opening statement, Collins said the assembled law professors would be speaking on things they “couldn’t have possibly actually digested” yet. In a moment that took off on social media, Karlan parried back that she was “insulted” because she “read transcripts of every one of the witnesses who appeared in the live hearing because I would not speak about these things without reviewing the facts.”
The first day of the Judiciary Committee’s impeachment hearings left both parties firmly entrenched: Republicans dedicated themselves to raising whatever concerns they can to delay the process; Democrats focused on the dangers of not acting on abuse of power. Impeachment appears inevitable in the House.
What happens next in the Senate will likely be determined by how the public continues to feel about impeachment. As of December 4, more than 47.8 percent of Americans favor impeachment, and 44 percent are opposed, according to an aggregation of polls by FiveThirtyEight. Democrats have now made the legal case for impeachment, and impeachment articles will be prepared. It doesn’t look good for Trump in the court of public opinion.