Dec 4, 2019
House Judiciary Committee Impeachment Hearing Transcript – Day 1
The House Judiciary Committee held its first Donald Trump impeachment hearing today. Among the witnesses were several legal scholars who spoke about their interpretation of the actions of the president. Read the transcript right here.
Jerry Nadler Opening Statement
Jerry Nadler: (00:00)
This is the first hearing we are conducting pursuant to house resolution 660 and the` special judiciary committee procedures that are described in section 4A of that resolution. Here is how the committee will proceed for this hearing.
Jerry Nadler: (00:15)
I will make an opening statement and then I will recognize the ranking member for an opening statement. Each witness will have 10 minutes to make their statements and then we will proceed to questions. I will not recognize myself for an opening statement.
Speaker 2: (00:29)
Mr. Chairman parliamentary inquiry. Mr. Chairman?
Jerry Nadler: (00:33)
I have the time for an opening statement to parliamentary and inquiry, is not in order at this time.
Jerry Nadler: (00:38)
The facts before us are undisputed. On July 25th President Trump called President Zelinsky of Ukraine and in President Trump’s words asked him for a favor. That call was part of a concerted effort by the President and his men to solicit a personal advantage in the next election. This time in the form of an investigation of his political adversaries by a foreign government. To obtain that private political advantage, President Trump withheld both an official White House meeting from the newly elected president of a fragile democracy. And withheld vital military aid from a vulnerable ally.
Jerry Nadler: (01:22)
When Congress found out about this scheme and began to investigate, President Trump took extraordinary and unprecedented steps to cover up his efforts and to withhold evidence from the investigators. And when witnesses disobeyed him, when career professionals came forward and told us the truth, he attacked them viciously. Calling them traders and liars, promising that they will quote “Go through some things.” Closed quote.
Jerry Nadler: (01:50)
Of course, this is not the first time that President Trump has engaged in this pattern of conduct. In 2016 the Russian government engaged in a sweeping and systematic campaign of interference in our elections. In the words of special counsel, Robert Mueller, quote, “The Russian government perceived that would benefit from a Trump presidency and worked to secure that outcome.” Closed quote.
Jerry Nadler: (02:17)
The president welcomed that interference. We saw this in real time when President Trump asked Russia to hack his political opponents. The very next day, a Russian Military Intelligence Unit attempted to hack that political opponent. When his own justice department tried to uncover the extent to which a foreign government had broken our laws, President Trump took extraordinary and unprecedented steps to obstruct the investigation. Including ignoring subpoenas, ordering the creation of false records, and publicly attacking and intimidating witnesses.
Jerry Nadler: (02:55)
Then as now, this administration’s level of obstruction is without precedent. No other president has vowed to quote, “Fight all of the subpoenas.” Unquote, as President Trump promised.
Jerry Nadler: (03:09)
In the 1974 impeachment proceedings, President Nixon produced dozens of recordings. In 1998 President Clinton physically gave his blood. President Trump by contrast, has refuse to produce a single document and directed every witness not to testify. Those are the facts before us.
Jerry Nadler: (03:32)
The impeachment inquiry has moved back to the House Judiciary Committee. And as we begin to review of these facts, the President’s pattern of behavior becomes clear. President Trump welcomed foreign interference in the 2016 election. He demanded it for the 2020 election. In both cases, he got caught. And in both cases he did everything in his power to prevent the American people from learning the truth about his conduct.
Jerry Nadler: (04:02)
On July 24th the Special Counsel testified before this committee. He implored us to see the nature of the threat to our country. “Over the course of my career, I have seen a number of challenges to our democracy. The Russian government’s efforts to interfere in our elections is among the most serious. This deserves the attention of every American.” closed quote. Ignoring that warning, President Trump called the Ukrainian president the very next day to ask him to investigate the president’s political opponents.
Jerry Nadler: (04:36)
As we exercise our responsibility to determine whether this pattern of behavior constitutes an impeachable offense, it is important to place President Trump’s conduct into historical context. Since the founding of our country, the House of Representatives has impeached only two presidents. A third was on his way to impeachment when he resigned. This committee has voted to impeach two presidents for obstructing justice. We have voted to impeach one president for obstructing a congressional investigation. To the extent that President Trump’s conduct fits these categories. There is precedent for recommending impeachment here. But never before in the history of the Republic have we been forced to consider the conduct of a president who appears to have solicited personal political favors from a foreign government. Never before has a president engage in a course of conduct that included all of the acts that most concerned the framers.
Jerry Nadler: (05:39)
The patriots who founded our country were not fearful men. They fought a war. They witnessed terrible violence. They overthrew a King. But as they met to frame our constitution, those patriots still feared one threat above all, foreign interference in our elections. They just opposed a tyrant. They were deeply worried that we would lose our new found liberty, not through a war. If a foreign army were to invade, we would see that coming. But through corruption from within. And in the early years of the Republic, they asked us, each of us to be vigilant to that threat.
Jerry Nadler: (06:17)
Washington warned us, quote, “To be constantly awake since history and experience prove that foreign influences is one of the most painful foes of Republican government.”
Jerry Nadler: (06:28)
Adams wrote to Jefferson quote, “As often as elections happen, the danger of foreign influence recurs.”
Jerry Nadler: (06:36)
Hamilton’s warning was more specific and more dire. In the Federalist papers he wrote that the quote, “Most deadly adversaries of Republican government,” unquote. Would almost certainly attempt to quote, “Raise a creature of their own to the chief magistracy of the union.”
Jerry Nadler: (06:53)
In short, the founders warned us that we should expect our foreign adversaries to target our elections. And that we will find ourselves in grave danger if the president willingly opens the door to their influence. What kind of president would do that? How will we know if the president has betrayed his country in this manner? How will we know if he has betrayed his country in this manner for petty, personal gain.
Jerry Nadler: (07:22)
Hamilton editors had a response for that as well. He wrote, “When a man unprincipled in private life, desperate in his fortune, bold in his temper, possessed of considerable talents, known to have scoffed in private at the principles of Liberty. When such a man is seen to Mount the hobbyhorse of popularity to join the cry of danger to liberty, to take every opportunity of embarrassing the general government and bringing it under suspicion. It may justly be suspected that his object is to throw things into confusion. That he may ride the storm and direct the whirlwind.”
Jerry Nadler: (08:02)
Ladies and gentlemen, the storm in which we find ourselves today was set in motion by President Trump. I do not wish this moment on the country. It is not a pleasant task that we undertake today. But we have each taken an oath to protect the Constitution and the facts before us are clear. President Trump did not merely seek to benefit from foreign interference in our elections. He directly and explicitly invited foreign interference in our elections. He used the powers of his office to try to make it happen. He sent his agents to make clear that this is what he wanted and demanded. He was willing to compromise our security and his office for personal political gain. It does not matter that President Trump got caught and ultimately released the funds that Ukraine so desperately needed. It matters that he enlisted a foreign government to intervene in our elections in the first place.
Jerry Nadler: (09:05)
It does not matter that President Trump felt that these investigations were unfair to him. It matters that he used office not merely to defend himself, but to obstruct investigators at every turn.
Jerry Nadler: (09:20)
We are all aware that the next election is looming, but we cannot wait for the election to address the present crisis. The integrity of that election is one of the very things at stake. The President has shown us his pattern of conduct if we do not act to hold him in check now, President Trump will almost certainly try again to solicit interference in the election for his personal political gain.
Jerry Nadler: (09:49)
Today we will begin our conversation where we should, with the text of the Constitution. We are empowered to recommend the impeachment of President Trump to the House if we find that he has committed treason, bribery, or other high crimes and misdemeanors. Our witness panel will help us to guide that conversation. In a few days we will reconvene and hear from the committees that worked to uncover the facts before us. And when we apply the constitution to those facts, if it is true that President Trump has committed an impeachable offense or multiple of impeachable offenses, then we must move swiftly to do our duty and charge him accordingly.
Jerry Nadler: (10:32)
I thank the witnesses for being here today. I now recognize the ranking member of the judiciary committees.
Speaker 2: (10:38)
Jerry Nadler: (10:39)
The gentleman from Georgia, Mr. Collins.
Speaker 2: (10:41)
Jerry Nadler: (10:41)
His opening statement.
Doug Collins Opening Statement
Doug Collins: (00:00)
I thank the chairman. And it is interesting that again parliamentary inquiries and I believe some were actually, some of the things that I’m going to discuss today because we’re sort of coming here today in a different arena. For everybody who’s not been here before, this is a new room. It’s new rules. It’s a new month. We’ve even got cute little stickers for our staff so we can come in because we want to make this important, and this is impeachment because we’ve done such a terrible job of it in this committee before. But what’s not new is basically what’s just been reiterated by the chairman. What’s not new is the facts. What’s not new is it’s the same sad story.
Doug Collins: (00:40)
What’s interesting, even before I get into part of my opening statement was, is what was just said by the chairman. We went back to a redo of Mr. Mueller. We’re also quoting him, saying the attention of the American people should be on foreign interference. I agree with him completely, except I guess the American people did not include the judiciary committee because we didn’t take it up. We didn’t have hearings. We didn’t do anything to delve deeply into this issue. We passed election bills, but did not get into the in depth part of what Mr. Mueller talked about, taking his own report and having hearings about that. We didn’t do that. So I guess the American people doesn’t include the house judiciary committee. You know the interesting, we also just heard an interesting discussion. We’re going to have a lot of interesting discussion today about the constitution and other things, but we also talked about the founders.
Doug Collins: (01:30)
What’s interesting is that the chairman talked a lot about the founders from the quotes, and again this is why we have the hearing about the founders being concerned about foreign influence, but what he also didn’t quote was the founders being really, really concerned about political impeachment because you just don’t like the guy. You didn’t like him since November of 2016. The chairman has talked about impeachment since last year when he was elected chairman, two years ago in November 2017 before he was even sworn in as chairman. So don’t tell me this is about new evidence and new things and new stuff. We may have a new hearing room, we may have new minds and we may have chairs that aren’t comfortable, but this is nothing new folks.
Doug Collins: (02:09)
This is sad. So what do we have here today? You know what I’m thinking? I looked at this, and what is interesting is there’s two things that have become very clear. This impeachment is not really about facts. If it was, I believe the other committees would have sent over recommendations for impeachment. No, they’re putting it on this committee because if it goes badly, I guess they want to blame Adam Schiff’s committee, and others want to blame this committee for it going bad. But they’re already drafting articles. Don’t be even fooled. They’re already getting ready for this. We’ve already went after this with the Ukraine after numerous failings, the Mueller, Cohen and emoluments.
Doug Collins: (02:46)
The list goes on. But the American people are failing to see us legislator. But if you want to know what’s really driving this, there’s two things. It’s called the clock and the calendar. The clock and the calendar. Most people in life, if you want to know what they truly value, you look at their clock. You look at their checkbook and their calendar. You know what they value. That’s what this committee values. Time. They want to do it before the end of the year. Why? Because the chairman said it just a second ago. Because we’re scared of the elections next year. We’re scared of the elections that we’ll lose again.
Doug Collins: (03:18)
So we’ve got to do this now. The clock and the calendar are what’s driving impeachment, not the facts. When we understand this, that’s what the witnesses here will say today. What do we have here today? What is really interesting over today and for the next few weeks is America will see why most people don’t go to law school. No offense to our professors. But please, really, we’re bringing you in here today to testify on stuff that most of you have already written about, all four, for the opinions that we already know, out of the classrooms that maybe you’re getting ready for finals in, to discuss things that you probably haven’t even had a chance to see. Unless you’re really good on TV or watching the hearings for the last couple of weeks, you couldn’t have possibly actually digested the Adam Schiff report from yesterday or the Republican response in any real way.
Doug Collins: (04:05)
Now we can be theoretical all we want, but the American people is really going to look at this and say, huh, what are we doing? Because there’s no fact witnesses planned for this committee. That’s an interesting thing. Frankly, there’s no plan at all except next week an ambiguous hearing on the presentation from the other committee that sent us the report and judiciary committee, which I’m not still sure what they want us to present on and nothing else. No plan. I asked the chairman before we left for Thanksgiving to stay in touch. Let’s talk about what we have because history will shine a bright light on us starting this morning.
Doug Collins: (04:40)
Crickets, until I asked for a witness the other day and let’s just say that didn’t go well. There’s no whistle blower. And by the way, it was proved today that he’s not or she’s not afforded the protection of identity. It’s not in the statute. It’s just something that was discussed by Adam Schiff. We also don’t have Adam Schiff who wrote the report. He said yesterday in a press conference, “I’m not going to, I’ll send staff to do that.” He’s not going to. But to me if he was wanting to, he would come begging to us.
Doug Collins: (05:12)
But here’s the problem. It sums it up very simply like this. Just 19 minutes after noon on inauguration day 2017, the Washington Post ran the headline, the campaign to impeach the president has begun. Mark Zad, who would later become the attorney for the infamous whistleblower tweeted in January, 2017, “The coup has started, the impeachment will follow ultimately.” And in May of this year, Al Green says, “If we don’t impeach the president, he’ll get reelected.” If you want to know what’s happening, here we go.
Doug Collins: (05:39)
Why did everything that I say up to this point about no fact witnesses, nothing. For the judiciary committee which spent two and a half weeks before this hearing was even held under Clinton, two and a half weeks. We didn’t even find your names out until less than 48 hours ago. I don’t know what we’re playing hide the ball on. It’s pretty easy what you’re going to say. We can’t even get that straight. So what are we doing for the next two weeks? I have no idea. The chairman just said an ambiguous report, but nothing else. If we’re going to simply not have fact witnesses when we are the rubber stamp hiding out back, the very rubber stamp the chairman talked about 20 years ago. What a disgrace to this committee, to have the committee of impeachment simply take from other entities and rubber stamp.
Doug Collins: (06:25)
You see, one of the things that I say matter about fact witnesses and actually hearing and actually having this a due process, because by the way, just a couple of months ago, the Democrats got all sort of dressed up, if you will, and says, we’re going to have due process protection for the present and good fairness throughout this. This is the only committee in which the president would even have a possibility. But no offense to you, the law professors, the president has nothing to ask you. You’re not going to provide anything he can’t read. And his attorneys have nothing else. Put witnesses in here that can be fact witnesses who can be actually cross-examined. That’s fairness. And every attorney on this panel knows that.
Doug Collins: (07:03)
This is a sham. But you know what I also see here is quotes like this. “There must never be a narrowly voted impeachment or an impeachment supported by one of our major political parties or imposed by another. Such an impeachment will produce divisiveness, bitterness, and politics for years to come and will call into question the very legitimacy of our political institutions. The American people are watching. They will not forget. You have the votes. You may have the muscle, but you do not have legitimacy of a national consensus or the constitutional imperative. The partisan coup d’etat will go down in infamy in the history of the nation.”
Doug Collins: (07:39)
How about this one? “I think the key point is that the Republicans are still running a railroad job with no attempt at fair procedure. And today when the Democrats offered amendments, offered motions in committee to say we should first discuss and adopt standards so that we know what we’re dealing with, standards for impeachment that was voted down or ruled out of order. When we say the important thing is to start looking at the question before we simply have a vote with no real inquiry first, that was voted down and ruled out of order. So frankly, the whole question of what material should be released and what is secondary, but that’s all we discussed. The essential question, and here it is, which is to set up a fair process as to whether the country put this country through an impeachment proceeding. That was ruled out of order. The Republicans refused to let us discuss it.”
Doug Collins: (08:19)
Those were all chairman Nadler before he was chairman, I guess 20 years makes a difference. This an interesting time. We’re having a factless impeachment. You just heard a one sided presentation of facts about this president. Today we will present the other side, which it gets so conveniently left out. Remember, fairness does dictate that, but maybe not here because we’re not scheduling anything else. I have a democratic majority who has poll tested what they think they ought to call what the president they think he did. Wow. That’s not following the facts. We have just a deep seated hatred of a man who came to the White House and did what he said he was going to do. The most amazing question I got in the first three months of this gentleman’s presidency from reporters was this, “Can you believe he’s putting forward those ideas?”
Doug Collins: (09:08)
I said, yes. He ran on them. He told the truth, and he did what he said. The problem here today is this will also be one of the first impeachments. The chairman mentioned there was two of them, one before he resigned, one in Clinton, in which the facts even by Democrats and Republicans were not really disputed. In this one, they’re not only disputed, they’re contradictive of each other. There are no set facts here. In fact, there’s not anything that presents an impeachment here except a president carrying out his job in the way the constitution saw that he sees fit to do it. This is where we’re at today. So the interesting thing that I come to with most everybody here is this may be a new time, a new place, and we may be all scrubbed up and looking pretty for impeachment.
Doug Collins: (09:55)
But this is not an impeachment. This is just a simple railroad job. And today’s is a waste of time because this is where we’re at. So I close today with this. It didn’t start with Mueller. It didn’t start with a phone call. You know where this started? It started with tears in Brooklyn in November, 2016 when the election was lost. So we are here, no plan, no fact witnesses, simply being a rubber stamp for what we have. But hey, we’ve got law professors here. What a start of a party. Mr. Chairman, before I yield back, I have a motion. Under clause two, rule 11.
Pamela Karlan Opening Statement
Pamela Karlan: (00:00)
Mr. Chairman and members of the committee, thank you so much for the opportunity to testify. Twice I have had the privilege of representing this committee and its leadership in voting rights cases before the Supreme Court. Once when it was under the leadership of the Chairman Sensenbrenner, and it’s good to see you again sir. And with Mr. Shabbat as one of my other clients. And once under the leadership of Chairman Conyers. It was a great honor for me to represent this committee because of this committee’s key role over the past 50 years in ensuring that American citizens have the right to vote in free and fair elections. Today you’re being asked to consider whether protecting those elections requires impeaching a president. That is an awesome responsibility, 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 without reviewing the facts.
Pamela Karlan: (01:06)
So, I’m insulted by the suggestion that as a law professor, I don’t 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. Indeed, as I want to explain in my testimony, drawing a foreign government into our elections is an especially serious abuse of power, because it undermines democracy itself. Our constitution begins with the words, “We the people,” for a reason.
Pamela Karlan: (01:50)
Our government, in James Madison’s words, “Derives all its powers directly or indirectly from the great body of the people.” And the way it derives these powers is through elections. Elections matter, both to the legitimacy of our government, and to all of our individual freedoms.
Pamela Karlan: (02:08)
Because as the Supreme Court declared more than a century ago, voting is preservative of all rights. So, it is hardly surprising that the constitution is marbled with provisions governing elections and guarantee governmental accountability. Indeed, a majority of the amendments to our constitution since the Civil War have dealt with voting or with terms of office. And among the most important provisions of our original constitution is the guarantee of periodic elections for the presidency. One every four years. America has kept that promise for more than two centuries, and it has done so even during wartime. For example, we invented the idea of absentee voting so that Union troops who supported President Lincoln could stay in the field during the election of 1864. And since then, countless other Americans have fought and died to protect our right to vote. But the framers of our constitution realized that elections alone could not guarantee that the United States would remain Republic.
Pamela Karlan: (03:12)
One of the key reasons for including the impeachment power was a risk that unscrupulous officials might try to rig the election process. Now, you’ve already heard two people give William Davy his props. Hamilton got a whole musical and William Davy is just going to get this committee hearing, but he warned that unless the constitution contained an impeachment provision, a president might spare no efforts or means whatsoever to get himself reelected. And George Mason insisted that a president who procured his appointment in the first instance through improper and corrupt acts should not escape punishment by repeating his guilt. And Mason was the person responsible for adding high crimes and misdemeanors to the list of impeachable offenses. So, we know from that, that the list was designed to reach a president who acts to subvert an election. Whether that election is the one that brought him into office, or it’s an upcoming election where he seeks an additional term.
Pamela Karlan: (04:13)
Moreover, the founding generation, like every generation of American 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.”
Pamela Karlan: (04:46)
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 reelection campaign would have horrified them. But based on the evidentiary record, that is what President Trump has done.
Pamela Karlan: (05:18)
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 enemies adversary’s interests above the interests of the United States.
Pamela Karlan: (05:43)
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. Based on the evidentiary record before you, what has happened in the case today is something that I do not think we have ever seen before.
Pamela Karlan: (06:18)
A president who has doubled down on violating his oath to faithfully execute the laws, and to protect and defend the constitution. 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 presidency. As president John Kennedy declared, “The right to vote in a free American election is the most powerful and precious right in the world, but our elections become less free when they are distorted by foreign interference.” What happened in 2016 was bad enough. There is widespread agreement that Russian operatives intervened to manipulate our political process. But that distortion is magnified if a sitting president abuses the powers of his office actually to invite foreign intervention.
Pamela Karlan: (07:11)
To see why, imagine living in a part of Louisiana or Texas that’s prone to devastating hurricanes and flooding. What would you think if you lived there and your governor asked for a meeting with the president to discuss getting disaster aid that Congress has provided for? What would you think if that president said, “I would like you to do us a favor. I’ll meet with you and I’ll send the disaster relief once you brand my opponent a criminal.”
Pamela Karlan: (07:43)
Wouldn’t you know in your gut that such a president had abused his office? That he betrayed the national interest, and that he was trying to corrupt the electoral process? I believe that that the evidentiary record shows wrongful acts on that scale here. It shows a president who delayed meeting a foreign leader, and providing assistance that Congress and his own advisors agreed serves our national interest in promoting democracy and in limiting Russian aggression. Saying, “Russia, if you’re listening.”
Pamela Karlan: (08:17)
A president who cared about the constitution would say, “Russia, if you’re listening, but out of our elections.” 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’s not politics as usual, at least not in the United States or not in any mature democracy. It is instead a cardinal reason why the constitution contains an impeachment power. Put simply, a president should resist foreign interference in our elections, not demand it and not welcome it. If we are to keep faith with our constitution and with our Republic, President Trump must be held to account. Thank you.
Jonathan Turley Opening Statement
Jonathan Turley: (00:01)
Thank you Chairman Adler, Ranking Member Collins, members of the judiciary committee. It’s an honor to appear before you today to discuss one of the most consequential functions you were given by the framers, and that is the impeachment of a president of the United States. 21 years ago, I sat before you, Chairman Adler, and this committee to testify at the impeachment of President William Jefferson Clinton. I never thought that I would have to appear a second time to address the same question with regard to another sitting president. Yet here we are.
Jonathan Turley: (00:41)
The elements are strikingly similar. The intense rancor and rage of the public debate is the same. It’s the atmosphere that the framers anticipated. The stifling intolerance of opposing views is the same. I’d like to start therefore, perhaps incongruently, by stating an irrelevant fact. I’m not a supporter of President Trump. I voted against him.
Jonathan Turley: (01:11)
My personal views of President Trump are as irrelevant to my impeachment testimony as they should be to your impeachment vote. President Trump will not be our last president, and what we leave in the wake of this scandal will shape our democracy for generations to come. I’m concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger. I believe this impeachment not only fails to satisfy the standard of past impeachments, but would create a dangerous precedent for future impeachments.
Jonathan Turley: (01:50)
My testimony lays out the history of impeachment from early English cases, to colonial cases, to the present day. The early impeachments were raw political exercises using fluid definitions of criminal and non-criminal acts. When the framers met in Philadelphia, they were quite familiar with impeachment and its abuses, including the Hastings case, which was discussed in the convention, a case that was still pending for trial in England.
Jonathan Turley: (02:18)
Unlike the English impeachments, the American model was more limited, not only in its application did judicial and executive officials, but its grounds. The framers rejected a proposal to add mail administration because Madison objected that so vague a term would be equivalent to a tenure during the pleasure of the Senate.
Jonathan Turley: (02:40)
In the end, various standards that had been used in the past were rejected. Corruption, obtaining office by improper means, betraying the trust to a foreign power, negligence, perfidy, peculation and oppression. Perfidy or lying and peculation, self-dealing are particularly relevant to our current controversy. My testimony explores the impeachment cases of Nixon, Johnson and Clinton.
Jonathan Turley: (03:08)
The closest of these three cases is to the 1868 impeachment of Andrew Johnson. It is not a model or an association that this committee should relish. In that case, a group of opponents of the president’s called the Radical Republicans created a trapdoor crime in order to impeach the president. They even defined it as a high misdemeanor.
Jonathan Turley: (03:33)
There was another shared aspect, besides the atmosphere of that impeachment and also the unconventional style of the two presidents, and that shared element is speed. This impeachment would rival the Johnson impeachment as the shortest in history, depending on how one counts the relevant days. Now, there are three commonalities when you look at these past cases. All involved established crimes. This would be the first impeachment in history where there would be considerable debate, and in my view, not compelling evidence of the commission of a crime.
Jonathan Turley: (04:15)
Second is the abbreviated period of this investigation, which is problematic and puzzling. This is a facially incomplete and inadequate record in order to impeach a president. Allow me to be candid in my closing remarks because we have limited time. We are living in the very period described by Alexander Hamilton, a period of agitated passions.
Jonathan Turley: (04:45)
I get it, you’re mad. The president’s mad. My Republican friends are mad. My Democratic friends are mad. My wife is mad, my kids are mad. Even my dog seems mad, and Luna’s a golden doodle and they don’t get mad. So we’re all mad. Where’s that taken us?
Jonathan Turley: (05:13)
Will and a slip shot impeachment make us less mad? Will it only invite an invitation for the madness to follow every future administration? That is why this is wrong. It’s not wrong because President Trump is right. His call was anything but perfect. It’s not wrong because the house has no legitimate reason to investigate the Ukrainian controversy. It’s not wrong because we’re in an election year. There is no good time for an impeachment. No, it’s wrong because this is not how you impeach an American president.
Jonathan Turley: (05:50)
This case is not a case of the unknowable. It’s a case of the peripheral. We have a record of conflicts, defenses that have not been fully considered, un-subpoenaed witness with material evidence. To impeach a president on this record would expose every future president to the same type of inchoate impeachment. Principal often takes us to a place we would prefer not to be. That was the place seven Republicans found themselves in the Johnson trial, when they saved a president from acquittal that they despised. For generations they even celebrated his profiles of courage.
Jonathan Turley: (06:31)
Senator Edmund Ross said it was like looking down into his open grave, and then he jumped because he didn’t have any alternative. It’s easy to celebrate those people from the distance of time and circumstance in the age of rage. It’s appealing to listen to those saying, forget the definitions of crimes, just do it. Like this is some impulse-buy Nike sneaker.
Jonathan Turley: (06:58)
You could certainly do that. You can declare the definitions of crimes alleged are immaterial and just an exercise of politics, not the law. However, those legal definitions and standards which I’ve addressed in my testimony, are the very thing that divide rage from reason.
Jonathan Turley: (07:17)
This all brings up to me, and I will conclude with this, of a scene from A Man For All Seasons by with Sir Thomas Moore. When his son-in-law, William Roper put the law … Suggested that Moore was putting the law ahead of morality. He said, “Moore would give the devil the benefit of the law.”
Jonathan Turley: (07:40)
When Moore asks Roper, would he instead cut a great road through the law to get after the devil? Roper proudly declares, “Yes, I’d cut down every law of England to do that.”
Jonathan Turley: (07:53)
Moore responds, “And when the last law is cut down, and the devil turned around on you, where would you hide, Roper? All the laws being flat.” He said, “This country is planted thick with laws from coast to coast, man’s laws, not God’s, and if you cut them down and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?”
Jonathan Turley: (08:22)
And he finished by saying, “Yes, I’d give the devil the benefit of law for my own sake.” So I will conclude with this. Both sides of this controversy have demonized the other to justify any measure in their defense, much like Roper. Perhaps that’s the saddest part of all of this.
Jonathan Turley: (08:47)
We have forgotten the common article of faith that binds each of us to each other in our constitution. However, before we cut down the trees so carefully planted by the framers, I hope you will consider what you will do when the wind blows again, perhaps for a democratic president. Where will you stand then, when all the laws being flat? Thank you, again, for the honor of testifying today, and I’d be happy to answer any questions.
Michael Gerhardt Opening Statement
Michael G.: (00:00)
Thank you, Mr. Chairman, ranking member, other distinguished members of the committee. It’s an honor and a privilege to join the other distinguished witnesses to discuss a matter of grave concern to our country, and our constitution. Because this house, The People’s House has the sole power of impeachment. There is no better forum to discuss the constitutional standard for impeachment and whether that standard has been met in the case of the current President of the United States.
Michael G.: (00:29)
As I explained in the remainder and balance of my opening statement, the record compiled thus far shows the president has committed several impeachable offenses including bribery, abuse of power, and soliciting a personal favor from a foreign leader to benefit himself personally, obstructing justice, and obstructing Congress. Our hearing today should serve as a reminder of one of the fundamental principles that drove the founders of our constitution to break from England, and to draft their own constitution. The principle that in this country, no one is king.
Michael G.: (01:09)
We have followed that principles since before the founding of the constitution, and it is recognized around the world as a fixed, inspiring American ideal. In his third message to Congress in 1903, President Theodore Roosevelt delivered one of the finest articulations of this principle. He said, “No one is above the law and no man is below, nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right, not asked for as a favor.”
Michael G.: (01:43)
Three features of our constitution protect the fundamental principle that no one, not even the president is above the law. First, in the British system, the public had no choice over the monarch who rule them. In our constitution, the framers allowed elections to serve as a crucial means for ensuring presidential accountability. Second, in the British system, the king could do no wrong, and no other parts of the government could check his misconduct. In our constitution, the framers developed the concept of separation of powers, which consists of checks and balances designed to prevent any branch, including the presidency, from becoming tyrannical.
Michael G.: (02:22)
Third in the British system, everyone but the king was impeachable. Our framers generation pledged their lives and fortunes to rebel against a monarch whom they saw as corrupt, tyrannical, and entitled to do no wrong. In our Declaration of Independence, the framers set forth a series of impeachable offenses that the king had committed against the American colonists. When the framers later convened in Philadelphia to draft our constitution, they were united around a simple, indisputable principle that was a major safeguard for the public. We the people, against tyranny of any kind. The people who had overthrown a king, we’re 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 and could do no wrong.
Michael G.: (03:09)
The framers created a chief executive to bring energy to their administration of federal laws, but to be accountable to Congress for treason, bribery, or other high crimes and misdemeanors. The framers concern about the need to protect against a corrupt president was evident throughout the convention. And here, I must thank my prior two friends who have spoken and referred to a North Carolinian, William Davy. I will refer to another North Carolinian in the Constitutional Convention. James Iredale, whom president Washington later appointed to the Supreme court assured his fellow delegates. The president quote, “Is of a very different nature from a Monarch. He is to be personally responsible for any abuse of the great trust placed in him.”
Michael G.: (04:02)
This brings us of course to the crucial question we’re here to talk about today. The standard for impeachment. The Constitution defines treason, and the term bribery basically means using office for personal gain. Or I should say misusing office for personal gain. And his Professor Feldman pointed out, these terms derive from the British, who understood the class of cases that would be impeachable to refer to political crimes. Which included great offenses against the United States, attempts to subvert The Constitution when the president deviates from his duty, or dares to abuse the power invested in him by the people, breaches the public trust, and serious injuries to the Republic.
Michael G.: (04:46)
In his influential essay in The Federalist Papers, Alexander Hamilton declared that, “Impeachable offenses are those offenses which proceeded 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 a society itself.”
Michael G.: (05:05)
Several themes emerge from the framers discussion of the scope of impeachable offenses and impeachment practice. We know that not all impeachable offenses are criminal, and we know that not all felonies are impeachable offenses. We know further that what matters in determining whether particular misconduct constitutes a high crime and misdemeanor is ultimately the context, and the gravity of the misconduct in question.
Michael G.: (05:33)
After reviewing the evidence that’s been made public, I can not help but conclude that this president has attacked each of the constitutions safeguards against establishing a monarchy in this country. Both the context and gravity of the president’s misconduct are clear. The favor he requested from Ukraine’s president was to receive, in exchange for his use of presidential power, Ukraine’s announcement of a criminal investigation of a political rival. The investigation was not the important action for the president, the announcement was. Because it could then be used in this country to manipulate the public into casting aside the president’s political rival because of concerns about his corruption.
Michael G.: (06:13)
The gravity of the president’s misconduct is apparent when we compare it to the misconduct of the one president resigned from office to avoid impeachment, conviction and removal. The House Judiciary Committee in 1974 approved three articles of impeachment against Richard Nixon, who resigned a few days later. The first article charged him with obstruction of justice. If you read The Mueller Report, it identifies a number of facts, I won’t lay them out here right now, that suggest the president himself has obstructed justice.
Michael G.: (06:43)
If you look at the second article of impeachment approved against Richard Nixon, it charged him with abuse of power for ordering the heads of the FBI, IRS, and CIA to harass his political enemies. In the present circumstance, The President is engaged in a pattern of abusing the trust, placing him by the American people, by soliciting foreign countries, including China, Russia, and Ukraine, to investigate his political opponents and interfere on his behalf in elections in which he is a candidate.
Michael G.: (07:14)
The third article approved against president Nixon charged that he had failed to comply with four legislative subpoenas. In the present circumstance. The president has refused to comply with and directed at least 10 others in his administration not to comply with lawful congressional subpoenas. Including Secretary of State, Mike Pompeo, Energy Secretary Rick Perry, and acting Chief of Staff and Head of the office of Management and Budget, Mick Mulvaney.
Michael G.: (07:40)
As Senator Lindsey Graham, now Chair of the Senate Judiciary Committee said, when he was a member of The House on the verge of impeaching President Clinton, the day Richard Nixon failed to answer that subpoena, is the day he was subject to impeachment. Because he took the power from Congress over the impeachment process away from Congress, and he became the judge and jury. That is a perfectly good articulation of why obstruction of Congress is impeachable. The president’s defiance of Congress is all in the more troubling due to the rationale he claims for his obstruction.
Michael G.: (08:16)
His arguments and those of his subordinates, including his White House counsel, in his October 8th letter to The Speaker and three committee chairs boil’s down to the assertion that he is above the law. I won’t reread that letter here, but I do want to disagree with the characterization in the letter of these proceedings. Since The Constitution expressly says, and The Supreme Court has unanimously affirmed that The House has the sole power of impeachment and that like the Senate, The House has the power to determine the rules for its proceedings.
Michael G.: (08:52)
The president and his subordinates have argued further that the president is entitled to absolute immunity from criminal procedure, even an investigation for any criminal wrongdoing, including shooting someone on 5th Avenue. The president has claimed further, he’s entitled to an absolute executive privilege, not to share any information he doesn’t want to share with another branch. He’s also claimed the entitlement to be able to order the executive branch, as he’s done, not to cooperate with this body when it conducts an investigation of the president.
Michael G.: (09:25)
If left unchecked, The president will likely continue his pattern of soliciting foreign interference on behalf of the next election, and of course his obstruction of Congress. The fact that we can easily transpose the articles of impeachment against President 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.
Michael G.: (09:53)
No misconduct is an antithetical to our democracy, and nothing injures the American people more than a president uses his power to weaken their authority under The Constitution as well as the authority of The Constitution itself. May I read one more sentence, or… I’m sorry.
Speaker 2: (10:11)
The witness may have another sentence or two.
Michael G.: (10:12)
Thank you. If Congress fails to impeach here, then the impeachment process has lost all meaning. And along with that, our Constitution has carefully crafted safeguards against the establishment of a king on American soil, and therefore, I stand with The Constitution, and I stand with the framers who were committed to ensure that no one is above the law.
Speaker 2: (10:33)
Thank you, professor.
Noah Feldman Opening Statement
Noah Feldman: (00:00)
Mr. Chairman and members of the committee.
Speaker 2: (00:01)
Mr. Chairman, I have a motion.
Jerry Nadler: (00:04)
The gentlemen is not in order to offer a motion at this time.
Speaker 4: (00:07)
Mr. Chairman, I seek recognition for a privileged motion.
Noah Feldman: (00:12)
Mr. Chairman and members of the committee, thank you very much for the opportunity to appear. My name is Noah Feldman. I serve as the-
Jerry Nadler: (00:19)
The witness will proceed.
Noah Feldman: (00:21)
I serve as the Felix Frankfurter Professor of Law at the Harvard Law School. My job is to study-
Speaker 4: (00:25)
I seek recognition for a privileged motion.
Jerry Nadler: (00:27)
The gentleman will suspend, the time is the witnesses’.
Speaker 5: (00:30)
The privileged motion needs to be recognized. You can call it not a privilege but you need to recognize it.
Jerry Nadler: (00:35)
In between the witnesses it may be recognized, not once I recognize the witness.
Speaker 5: (00:39)
Jerry Nadler: (00:40)
The witness will proceed. We’ll entertain the motion after the first witness.
Speaker 5: (00:43)
He started before he-
Noah Feldman: (00:44)
My job is to study and to teach the Constitution from its origins until the present. I’m here today to describe three things. Why the framers of our Constitution included a provision for the impeachment of the president. What that provision providing for impeachment for high crimes and misdemeanors means. And last, how it applies to the question before you and before the American people, whether president Trump has committed impeachable offenses under the Constitution.
Noah Feldman: (01:13)
Let me begin by stating my conclusions. The framers provided for the impeachment of the president because they feared that the president might abuse the power of his office for personal benefit, to corrupt the electoral process and ensure his reelection or to subvert the national security of the United States. High crimes and misdemeanors are abuses of power and of public trust connected to the office of the presidency. On the basis of the testimony and the evidence before the House, President Trump has committed impeachable high crimes and misdemeanors by corruptly abusing the office of the presidency. Specifically, President Trump has abused his office by corruptly soliciting President Volodymyr Zelensky of Ukraine to announce investigations of his political rivals in order to gain personal advantage, including in the 2020 presidential election.
Noah Feldman: (02:16)
Let me begin now with the question of why the framers provided for impeachment in the first place. The framers borrowed the concept of impeachment from England, but with one enormous difference. The House of Commons and the House of Lords could use impeachment in order to limit the ministers of the King, but they could not impeach the King. And in that sense, the King was above the law. In stark contrast, the framers, from the very outset of the Constitutional Convention in 1787, made it crystal clear that the president would be subject to impeachment in order to demonstrate that the president was subordinate to the law.
Noah Feldman: (03:01)
If you will, I would like you to think now about a specific date in the Constitutional Convention, July 20th, 1787. It was the middle of a long hot summer. And on that day, two members of the Constitutional Convention actually moved to take out the impeachment provision from the draft constitution. And they had a reason for that. And their reason was they said, “Well, the president will have to stand for reelection and if the president has to stand for reelection, that is enough, we don’t need a separate provision for impeachment.” When that proposal was made, significant disagreement ensued.
Noah Feldman: (03:40)
The governor of North Carolina, a man called William Davie, immediately said, if the president cannot be impeached, quote, “he will spare no efforts or means whatever to get himself reelected.” Following Davie, George Mason of Virginia, a fierce Republican critic of executive power said, “No point is more important than that impeachment be included in the Constitution. Shall any man be above justice?” he asked. Thus expressing the core concern, that the president must be subordinate to the law and not above the law.
Noah Feldman: (04:18)
James Madison, the principal draftsman of the US Constitution then spoke up. He said it was quote, “Indispensable that some provision be made for impeachment.” Why? Because he explained, standing for reelection was quote, “not a sufficient security,” close quote, against presidential misconduct or corruption. “A president,” he said “might betray his trust to foreign powers.” A president who in a corrupt fashion, abused the office of the presidency, said James Madison quote, “Might be fatal to the Republic,” close quote.
Noah Feldman: (04:56)
And then a remarkable thing happened in the convention. Gouverneur Morris of Pennsylvania, one of the two people who had introduced the motion to eliminate impeachment from the Constitution, got up and actually said the words, “I was wrong.” He told the other framers present that he had changed his mind on the basis of the debate on July 20th and that it was now his opinion that in order to avoid corruption of the electoral process, a president would have to be subject to impeachment regardless of the availability of a further election. The upshot of this debate is that the framers kept impeachment in the Constitution. Specifically in order to protect against the abuse of office with the capacity to corrupt the electoral process or lead to personal gain.
Noah Feldman: (05:48)
Now turning to the language of the Constitution, the framers use the words, “high crimes and misdemeanor to describe those forms of action that they considered impeachable. These were not vague or abstract terms to the framers. The words high crimes and misdemeanors represented very specific language that was well understood by the entire generation of the framers. Indeed, they were borrowed from an impeachment trial in England, that was taking place as the framers were speaking, which was referred to in fact, by George Mason.
Noah Feldman: (06:23)
The words high crimes and misdemeanors referred to abuse of the office of the presidency for personal advantage, or to corrupt the electoral process, or to subvert the national security of the United States. There’s no mystery about the words high crimes and misdemeanors. The word high modifies both crimes and misdemeanors, so they’re both high. And high means, connected to the office of the presidency, connected to office. The classic form that was familiar to the framers was the abuse of office for personal gain or advantage. And when the framers specifically named bribery as a high crime and misdemeanor, they were naming one particular version of this abuse of office, the abusive office for personal or individual gain. The other forms of abuse of office abuse office? Abuse of office to affect elections and abuse of office to compromise national security, were further forms that were familiar to the framers.
Noah Feldman: (07:25)
Now, how does this language of high crimes and misdemeanors apply to President Trump’s alleged conduct? Let me be clear, the Constitution gives the House of Representatives, that is, the members of this committee and the other members of the House, quote, “Sole power of impeachment.” It’s not my responsibility or my job to determine the credibility of the witnesses who appeared before the House thus far, that is your constitutional responsibility. My comments will therefore follow my role, which is to describe and apply the meaning of impeachable offenses to the facts described by the testimony and evidence before the House. President Trump’s conduct as described in the testimony and evidence clearly constitutes impeachable high crimes and misdemeanors under the Constitution.
Noah Feldman: (08:19)
In particular, the memorandum and other testimony relating to the July 25th, 2019 phone call between the two presidents, President Trump and President Zelensky, more than sufficiently indicates that 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 relation to the 2020 election. Again, the words abuse of office are not mystical or magical, they are very clear. The abusive office when the president uses a feature of his power, the awesome power of his office, not to serve the interests of the American public, but to serve his personal, individual, partisan, electoral interests. That is what the evidence before the House indicates. Finally, let me be clear that on its own, soliciting the leader of a foreign government in order to announce investigations of political rivals and perform those investigations would constitute a high crime and misdemeanor. But the House also has evidence before it that the president committed to further acts that also qualify as high crimes and misdemeanors.
Noah Feldman: (09:43)
In particular, the House heard evidence that the president placed a hold on critical US aid to Ukraine and conditioned its release on announcement of the investigations of the Bidens and of the discredited CrowdStrike conspiracy theory. Furthermore, the House also heard evidence that the president conditioned a White House visit, desperately sought by the Ukrainian president, on announcement of the investigations. Both of these acts constitute impeachable high crimes and misdemeanors under the Constitution. They each encapsulate the framers’ worry that the president of the United States would take any means whatever, to ensure his reelection. And that is the reason that the framers provided for impeachment in a case like this one.
Questioning Part 1
Guy R.: (00:01)
Mr. Chairman, I seek recognition.
Jerry Nadler: (00:02)
Who seeks recognition?
Guy R.: (00:04)
Me, Mr. Chairman.
Jerry Nadler: (00:05)
For what purpose does the gentleman seek recognition?
Guy R.: (00:07)
Mr. Chairman, I have a motion pursuant to Rule 11, specifically 2K6. I move to subpoena the individual commonly referred to as the whistleblower. I asked to do this in executive session-
Jerry Nadler: (00:18)
The gentleman has stated his motion. Do I hear a motion to table?
Speaker 1: (00:20)
I move to table the motion.
Jerry Nadler: (00:21)
Motion is to table. All in favor say, “Aye.”
Jerry Nadler: (00:25)
Guy R.: (00:26)
Mr. Chairman, roll call vote.
Jerry Nadler: (00:27)
The motion to table is approved. The roll call is requested. The Clerk will call the roll.
Jerry Nadler: (00:34)
Mr. Nadler votes “aye.” Miss Lofgren?
Zoe Lofgren: (00:36)
Miss Lofgren votes “aye.” Miss Jackson Lee?
Sheila J-L: (00:38)
Miss Jackson Lee votes “aye.” Mr. Cohen?
Steve Cohen: (00:41)
Mr. Cohen votes “aye.” Mr. Johnson of Georgia?
Hank Johnson: (00:43)
Mr. Johnson of Georgia vote “aye.” Mr. Deutch?
Ted Deutch: (00:46)
Mr. Deutch votes “aye.” Miss Bass?
Karen Bass: (00:48)
Miss Bass votes “aye.” Mr. Richmond?
Cedric Richmond: (00:49)
Mr. Richmond votes “aye.” Mr. Jeffries?
Hakeem Jeffries: (00:51)
Mr. Jeffries votes “aye.” Mr. Cicilline?
David Cicilline: (00:53)
Mr. Cicilline votes “aye.” Mr. Swalwell?
Eric Swalwell: (00:53)
Mr. Swalwell votes “aye.” Mr. Lieu?
Ted Lieu: (00:58)
Mr. Lieu votes “aye.” Mr. Raskin?
Jamie Raskin: (01:00)
Mr. Raskin votes “aye.” Miss Jayapal?
Pramila Jayapal: (01:04)
Miss Jayapal votes “aye.” Miss Demings?
Val Demings: (01:05)
Miss Demings votes “aye.” Mr. Correa?
Lou Correa: (01:06)
Mr. Correa votes “aye.” Miss Scanlon?
Mary Gay S.: (01:08)
Miss Scanlon votes “aye.” Miss Garcia?
Sylvia Garcia: (01:10)
Miss Garcia votes “aye.” Mr. Neguse?
Joe Neguse: (01:12)
Mr. Neguse votes “aye.” Miss McBath?
Lucy McBath: (01:14)
Miss McBath votes “aye.” Mr. Stanton?
Greg Stanton: (01:16)
Mr. Stanton vote “aye.” Miss Dean?
Madeleine Dean: (01:18)
Miss Dean votes “aye.” Miss Mucarsel-Powell?
Debbie M-P: (01:20)
Miss Mucarsel-Powell votes “aye.” Miss Escobar?
Veronica E.: (01:23)
Miss Escobar votes “aye.” Mr. Collins? Mr. Sensenbrenner?
Jim S.: (01:25)
Steve Chabot: (01:25)
Mr. Chabot votes “no.” Mr. Gohmert?
Louis Gohmert: (01:29)
Mr. Gohmert votes “no.” Mr. Jordan?
Jim Jordan: (01:34)
Mr. Jordan votes “no.” Mr. Buck?
Ken Buck: (01:36)
Mr. Buck votes “no.” Mr. Ratcliffe?
John Ratcliffe: (01:38)
Mr. Ratcliffe votes “no.” Miss Roby?
Martha Roby: (01:42)
Miss Roby votes “no.” Mr. Gaetz?
Matt Gaetz: (01:44)
Mr. Gaetz votes “no.” Mr. Johnson of Louisiana?
Mike Johnson: (01:47)
Mr. Johnson of Louisiana votes “no.” Mr. Biggs?
Speaker 4: (01:52)
Did he say “no”?
Andy Biggs: (01:54)
Mr. Biggs votes “no.” Mr. McClintock?
Tom McClintock: (01:56)
Mr. McClintock votes “no.” Miss Lesko?
Debbie Lesko: (01:58)
Miss Lesko votes ” no.” Mr. Reschenthaler?
Guy R.: (02:01)
Mr. Reschenthaler votes “no.” Mr. Cline?
Ben Cline: (02:03)
Mr. Cline vote “no.” Mr. Armstrong?
Kelly Armstrong: (02:05)
Mr. Armstrong votes “no.” Mr. Steube?
Kelly Steube: (02:07)
Mr. Steube votes “no.”
Jerry Nadler: (02:11)
Has everyone voted who wishes to votes?
Doug Collins: (02:15)
Mr. Chairman, how am I recorded?
Mr. Collins, you are not recorded.
Doug Collins: (02:18)
Mr. Collins votes “no.”
Jerry Nadler: (02:20)
Is there anyone else who wishes to votes?
Jim S.: (02:22)
Mr. Chairman, how am I recorded?
Mr. Sensenbrenner, you are not recorded.
Jim S.: (02:25)
Mr. Sensenbrenner votes “no.”
Jerry Nadler: (02:29)
Anyone else? The Clerk will report.
Looks like we’re good. Okay. Mr. Chairman, there are 24 “ayes” and 17 “no’s.”
Jerry Nadler: (02:59)
The motion to table is adopted. We will now proceed to the first round of questions. Pursuant to House Resolution 660 and its accompanied Judiciary Committee procedures, there will be 45 minutes of questions conducted by the Chairman or Majority counsel, followed by 45 minutes for the Ranking Member or Minority counsel. Only the Chair and Ranking Member and their respective counsels may question witnesses during this period. Following that, unless I specify additional equal time for extended questioning, we will proceed under the Five Minute Rule, and every member will have the chance to ask questions. I now recognize myself for the first round of questions.
Jerry Nadler: (03:37)
Professors, thank you for being here today. The Committee has been charged with the grave responsibility of considering whether to recommend articles of impeachment against the President. I speak for my colleagues when I say that we do not take this lightly. We are committed to ensuring that today’s hearing, as well as the larger responsibility before us, are grounded in the Constitution. Intelligence Committee’s report concluded that the President pressured a foreign leader to interfere in our elections by initiating and announcing investigations into President Trump’s political adversaries. He then sought to prevent Congress from investigating his conduct by ordering his administration and everyone in it to defy House subpoenas. Professor Karlan, as you said, the right to vote is the most precious legal right we have in this country. Does the President’s conduct endanger that right?
Pamela Karlan: (04:30)
Yes, Mr. Chairman. It does.
Jerry Nadler: (04:35)
Thank you. How does it do so?
Speaker 2: (04:36)
Yeah, I bet she did.
Pamela Karlan: (04:38)
The way that it does it is exactly what President Washington warned about. By inviting a foreign government to influence our elections, it takes the right away from the American people, and it turns that into a right that foreign governments decide to interfere for their own benefit. Foreign governments don’t interfere in our elections to benefit us, they intervene to benefit themselves.
Jerry Nadler: (05:02)
Thank you. Professor Gerhardt, you have written extensively about our system of checks and balances. What happens to that system when a President undertakes a blockade of Congress’ impeachment inquiry? When he orders all witnesses not to testify? What is our recourse?
Michael G.: (05:19)
When a President does that, separation of powers means nothing. The subpoenas that have been issued, of course, are lawful orders. In our law schools, we would teach our students, this is an easy, straightforward situation. You comply with the law. Lawyers, all the time, have to comply with subpoenas. In this situation, the full-scale obstruction, full-scale obstruction of those subpoenas, I think torpedoes separation of powers. Therefore, your only recourse is to, in a sense, protect your institutional prerogatives, and that would include impeachment.
Jerry Nadler: (05:51)
The same is true of defying Congressional subpoenas, on a wholesale basis, with respect to oversight, not just to impeachment?
Michael G.: (06:01)
Absolutely. Yes, sir.
Jerry Nadler: (06:03)
Thank you. Professor Feldman, as I understand it, the Framers intended impeachment to be used infrequently, not as punishment, but to save our democracy from threats so significant that we cannot wait for the next election. In your testimony, you suggest that we face that kind of threat. Can you explain why you think impeachment is the appropriate recourse here? Why we cannot wait for the next election? Those are two questions, if you want them to be.
Noah Feldman: (06:31)
The Framers reserved impeachment for situations where the President abused his office, that is, used it for his personal advantage and in-particular, they were specifically worried about a situation where the President used his office to facilitate, corruptly, his own re-election. That’s, in fact, why they thought they needed impeachment and why waiting for the next election wasn’t good enough.
Noah Feldman: (06:54)
On the facts that we have before the House right now, the President solicited assistance from a foreign government in order to assist his own re-election. That is, he used the power of his office, that no one else could possibly have used, in order to gain personal advantage for himself, distorting the election, and that’s precisely what the framers anticipated.
Jerry Nadler: (07:17)
Thank you very much. I now yield the remainder of my time to Mr. Eisen for counsel questions. Mr. Eisen.
Norm Eisen: (07:23)
Professors, good morning.
Norm Eisen: (07:24)
Thank you for being here. I want to ask you some questions about the following high crimes and misdemeanors that were mentioned in the opening statements. Abuse of power and bribery, obstruction of Congress, and obstruction of justice. Professor Feldman, what is abuse of power?
Noah Feldman: (07:49)
Abuse of power is when the President uses his office, takes an action that is part of the Presidency, not to serve the public interest, but to serve his private benefit. In-particular, it’s an abuse of power if he does it to facilitate his re-election or to gain an advantage that is not available to anyone who is not the President.
Norm Eisen: (08:09)
Sir, why is that impeachable conduct?
Noah Feldman: (08:14)
If the President uses his office for personal gain, the only recourse available under the Constitution is for him to be impeached, because the President cannot be, as a practical matter, charged criminally while he is in office because the Department of Justice works for the President, so the only mechanism available, for a President who tries to distort the electoral process for personal gain, is to impeach him. That is why have impeachment.
Norm Eisen: (08:40)
Professor Karlan, do scholars of impeachment generally agree that abuse of power is an impeachable offense?
Pamela Karlan: (08:49)
Yes, they do.
Norm Eisen: (08:50)
Professor Gerhardt, do you agree that abuse of power is impeachable?
Michael G.: (08:55)
Norm Eisen: (08:56)
I’d like to focus the panel on the evidence they considered and the findings in the Intelligence Committee report that the President solicited the interference of a foreign government, Ukraine, in the 2020 U.S. Presidential election. Professor Feldman, did President Trump commit the impeachable high crime and misdemeanor of abuse of power, based on that evidence and those findings?
Noah Feldman: (09:27)
Based on that evidence and those findings, the President did commit an impeachable abuse of office.
Norm Eisen: (09:32)
Professor Karlan, same question.
Pamela Karlan: (09:34)
Norm Eisen: (09:37)
Professor Gerhardt, did President Trump commit the impeachable high crime and misdemeanor of abuse of power?
Michael G.: (09:44)
We three are unanimous, yes.
Norm Eisen: (09:48)
Professor Feldman, I’d like to quickly look at the evidence and the report. On July 25th, President Trump told the President of Ukraine, and I quote, “I would like you to do us a favor though,” and he asked about looking into the Bidens. Was the memorandum of that call relevant to your opinion that the President committed abuse of power?
Noah Feldman: (10:11)
The memorandum of that call between the two Presidents is absolutely crucial to the determination, to my determination, that the President abused his office.
Norm Eisen: (10:19)
Did you consider the findings of fact that the Intelligence Committee made including that, and again I quote, “The President withheld official acts of value to Ukraine, and conditioned their fulfillment on actions by Ukraine that would benefit his personal political interests”?
Noah Feldman: (10:39)
Yes. In making the determination that the President committed an impeachable offense, I relied on the evidence that was before the House and the testimony. Then, when this report was issued, I continued to rely on that.
Norm Eisen: (10:50)
Sir, did you review the following testimony from our Ambassador to Ukraine, Ambassador William Taylor?
William Taylor: (10:59)
To withhold that assistance for no good reason other than help with the political campaign made no sense. It was counterproductive to all of what we had been trying to do. It was illogical. It could not be explained. It was crazy.
Noah Feldman: (11:18)
Yes. That evidence underscored the way that the President’s actions undercut national security.
Norm Eisen: (11:25)
Professor Feldman, will you please explain why you concluded that the President committed the high crime of abuse of power, and why it matters?
Noah Feldman: (11:38)
The abuse of power occurs when the President uses his office for personal advantage or gain. That matters, fundamentally, to the American people because if we cannot impeach a President who abuses his office for personal advantage, we no longer live in a democracy, we live in a monarchy, or we live under a dictatorship. That’s why the Framers created the possibility of impeachment.
Norm Eisen: (12:03)
Now, Professor Karlan, this high crime and misdemeanor of abuse of power, was it some kind of loose or undefined concept to the Founders of our country and the Framers of our Constitution?
Pamela Karlan: (12:18)
No, I don’t think it was a loose concept at all. It had a long lineage in the common law in England, of Parliamentary impeachments of lower level officers. Obviously, they had not talked about impeaching as you’ve heard earlier, the King or the like.
Norm Eisen: (12:38)
Can you share a little bit about that lineage, please?
Pamela Karlan: (12:41)
Yes. The Parliament in England impeached officers of the Crown when those people abused their power. If I could give you one example that might be a little helpful here, right after the restoration of the Kingship in England, there was an impeachment. When they impeached somebody, they had to say what were they impeaching him for? Sometimes, it would be, “We’re impeaching him for treason,” or the like, and sometimes they would use the phrase “high crime or misdemeanor.”
Pamela Karlan: (13:11)
There was an impeachment of Viscount Mordaunt, which is a great name to have. Viscount Mordaunt, and he was impeached because he was the Sheriff of Windsor, and as the Parliamentary election was coming up, he arrested William Taylor. I just want to read to you from the Article of Impeachment in front of the House of Commons, because it’s so telling. Here’s what Article One of the impeachment said. It said, “Understanding that one, William Taylor, did intend to stand for the election of one of the Burgesses of the Borough of Windsor to serve in this present Parliament …”
Pamela Karlan: (13:55)
In other words, he was running as a member of Parliament. This is what Viscount Mordaunt did. ” To disparage and prevent the free election of the said, William Taylor, and strike a terror into those of the said Borough, which should give their voices for him, and deprive them of the freedom of their voices at the election, Viscount Mordaunt did command and cause the said, William Taylor, to be forcibly, illegally and arbitrarily seized upon by soldiers,” and then he detained him. In other words, he went after a political opponent and that was a high crime or misdemeanor to use your office to go after a political opponent.
Norm Eisen: (14:31)
Now, Professor Gerhardt, does a high crime and misdemeanor require an actual statutory crime?
Michael G.: (14:40)
No, it plainly does not. Everything we know about the history of impeachment reinforces the conclusion that impeachable offenses do not have to be crimes, and again, not all crimes are impeachable offenses. We look at, again, at the context and gravity of the misconduct.
Norm Eisen: (15:00)
Professor Turley, you recently wrote in The Wall Street Journal and I quote, “There is much that is worthy of investigation in the Ukraine scandal, and it is true that impeachment doesn’t require a crime.”
Jonathan Turley: (15:16)
That’s true, but I also added an important caveat. First of all-
Norm Eisen: (15:19)
Sir, it was a “yes” or a “no” question. Did write in The Wall Street Journal, “There is much that is worthy of investigation in the Ukraine scandal, and it is true that impeachment does not require a crime”? Is that an accurate quote, sir?
Jonathan Turley: (15:33)
That’s, you’ve read it well.
Norm Eisen: (15:36)
Professors Feldman, Karlan and Gerhardt, you have identified that on the evidence here, there is an impeachable act, a high crime and misdemeanor of abuse of power, correct?
Michael G.: (15:51)
Pamela Karlan: (15:52)
Noah Feldman: (15:53)
Norm Eisen: (15:54)
Professor Feldman, what does the Constitution say is the responsibility of the House of Representatives in dealing with Presidential high crimes and misdemeanors like abuse of power?
Noah Feldman: (16:08)
The Constitution gives the House of Representatives the sole power of impeachment. That means the House has the right and the responsibility to investigate Presidential misconduct and where appropriate, to create and pass Articles of Impeachment.
Norm Eisen: (16:23)
Professor Karlan, what does that responsibility mean for this Committee with respect to President Trump’s abuse of power?
Pamela Karlan: (16:34)
Well, because this is an abuse that cuts to the heart of democracy, you need to ask yourselves, if you don’t impeach a President who has done what this President has done, or at least you don’t investigate and then impeach, if you conclude that the House Select Committee on Intelligence findings are correct, then what you’re saying is, “It’s fine to go ahead and do this again.” I think that in the report that came out last night, the report talks about the clear and present danger to the election system. It’s your responsibility to make sure that all Americans get to vote in a free and fair election next November.
Norm Eisen: (17:20)
Professor Karlan, I’d like to direct you to the words in the Constitution, “Other high crimes and misdemeanors.” We’re still going to talk about abuse of power. Can I ask, did the Constitution spell out every other high crime and misdemeanor?
Pamela Karlan: (17:37)
No, it did not.
Norm Eisen: (17:38)
Why? Please, please.
Pamela Karlan: (17:40)
Because they recognize that the inventiveness of man and the likelihood that this Constitution would endure for generations meant they couldn’t list all of the crimes that might be committed. They couldn’t imagine an abuse of power, for example, that involved burglarizing and stealing computer files from an adversary because they couldn’t have imagined computers.
Pamela Karlan: (18:05)
They couldn’t necessarily have imagined wire tapping because there we had no wires in 1789, so what they did is they put in a phrase that the English had used and had adapted over a period of centuries to take into account that the idea of high crimes and misdemeanors is to get at things that people in office use to strike at the very heart of our democracy.
Norm Eisen: (18:34)
Professor, in your written testimony, you mentioned two additional aspects of high crimes and misdemeanors besides abuse of power. You talked about betrayal of the national interest and corruption of the electoral process. Can you say a little bit more about what the Framers’ concerns were about corruption of elections and betrayal of the national interest involving foreign powers, and how they come into play here?
Pamela Karlan: (19:07)
Sure. Let me start with the Framers and what they were concerned with and then bring it up-to-date, because I think there’s some modern stuff as well that’s important. The Framers were very worried that elections could be corrupted. They could be corrupted in a variety of different ways, and they spent a lot of time trying to design an election system that wouldn’t be subject to that kind of corruption. There are a number of different provisions in the Constitution that deal with the kinds of corruption they were worried about too that I’d just like to highlight here because I think they go to this idea about the national interest and foreign governments, are one that seems today, I think to most of us, to be really a kind of remnant of a past time, which is if you become an American citizen, almost everything in this country is open to you. You can become Chief Justice of the United States, you can become Secretary of State. The one office that’s not open to you, even though you’re a citizen just like all of the rest of us, is the Presidency, because of the Natural Born Citizen Clause of the Constitution.
Pamela Karlan: (20:09)
The reason they put that in is they were so worried about foreign influence over a President. The other clause, which probably no one had heard of five years ago, but now everybody talks about is the Emoluments Clause. They were really worried that the President, because he was only going to be in office for a little while, would use it to get everything he could, and he would take gifts from foreign countries. Not even necessarily bribes, but just gifts, and they were worried about that as well, so they were very concerned about those elections, but it’s not just them.
Pamela Karlan: (20:40)
I want to say something about what our national interest is today, because our national interest today is different in some important ways than it was in 1789. What the Framers were worried about was that we would be a weak country and we could be exploited by foreign countries. Now, we’re a strong power now, the strongest power in the world. We can still be exploited by foreign countries. The other thing that we’ve done, and this is one of the things that I think we, as Americans, should be proudest of, is we have become what John Winthrop said in his sermon in 1640, and what Ronald Reagan said in his final address to the country as he left office.
Pamela Karlan: (21:17)
We have become the shining city on a hill. We have become the nation that leads the world in understanding what democracy is. One of the things we understand most profoundly is it’s not a real democracy, it’s not a mature democracy if the party in power uses the criminal process to go after its enemies. I think you heard testimony, the Intelligence Committee heard testimony about how it isn’t just our national interest in protecting our own elections. It’s not just our national interest in making sure that the Ukraine remains strong and on the front lines so they fight the Russians there and we don’t have to fight them here.
Pamela Karlan: (21:54)
It’s also our national interest in promoting democracy worldwide, and if we look hypocritical about this, if we look like we’re asking other countries to interfere in our election, if we look like we’re asking other countries to engage in criminal investigations of our President’s political opponents, then we’re not doing our job of promoting our national interest in being that shining city on a hill.
Norm Eisen: (22:20)
Professor Feldman, anything to add?
Noah Feldman: (22:25)
Ultimately, the reason that the Constitution provided for impeachment was to anticipate a situation like the one that is before you today. The Framers were not prophets, but they were very smart people with a very sophisticated understanding of human incentives. They understood that a President would be motivated, naturally, to try to use the tremendous power of office to gain personal advantage to keep himself in office, to corrupt the electoral process and, potentially, to subvert the national interest. The facts strongly suggest that this is what President Trump has done, and under those circumstances, the Framers would expect the House of Representatives to take action in the form of impeachment.
Norm Eisen: (23:11)
Professor Feldman, did you review the Intelligence Committee report finding that President Trump compromised national security to advance his personal political interests?
Noah Feldman: (23:27)
Norm Eisen: (23:28)
Will you explain, in your view, how that happened?
Noah Feldman: (23:34)
The President sought personal gain and advantage by soliciting the announcement of investigations, and presumably investigations from Ukraine. To do so, he withheld critical assistance that the government of Ukraine needed, and by doing so, he undermined the national security interest of the United States in helping Ukraine, our ally, in a war that it is fighting against Russia. In the simplest possible terms, the President put his personal gain ahead of the national security interest as expressed, according to the evidence before you, by the entirety of a unanimous national security community.
Norm Eisen: (24:19)
Sir, is it your view that the Framers would conclude that there was a betrayal of the national interest or national security by President Trump on these facts?
Noah Feldman: (24:32)
In my view, if the Framers were aware that a President of the United States had put his personal gain and interest ahead of the national security of the United States by conditioning aid to a crucial ally, that’s in the midst of a war, on investigations aimed at his own personal gain, they would certainly conclude that that was an abuse of the office of the Presidency and they would conclude that that conduct was impeachable under the Constitution.
Norm Eisen: (24:57)
Professor Gerhardt, what are your thoughts on the abuse of power, betrayal of national security or national interest, and the corruption of elections, sir?
Michael G.: (25:11)
Well, I have a lot of thoughts. One of them is that what we haven’t mentioned yet and brought into this conversation is the fact that the impeachment power requires this Committee, this House to be able to investigate Presidential misconduct. If a President can block an investigation, undermine it, stop it, then the impeachment power itself, as a check against misconduct, is undermined completely.
Norm Eisen: (25:42)
Professor Karlan, can you have an impeachable offense of abuse of power that is supported by considerations of a President’s betrayal of the national interest or national security, and by corruption of elections?
Pamela Karlan: (25:58)
Yes, you can.
Norm Eisen: (25:59)
Do we have that here, ma’am?
Pamela Karlan: (26:01)
Based on the evidence that I’ve seen, which is reviewing the transcripts of the 12 witness who testified, looking at the call readout, looking at some of the President’s other statements, looking at the statement by Mr. Mulvaney and the like, yes, we do.
Norm Eisen: (26:23)
Professor Feldman, do you agree?
Noah Feldman: (26:25)
Norm Eisen: (26:27)
Michael G.: (26:28)
Yes, I do.
Norm Eisen: (26:31)
Professor Karlan, we’ve been talking about the category of other high crimes and misdemeanors like abuse of power, but there are some additional high crimes and misdemeanors that are specifically identified in the text of the Constitution, correct?
Pamela Karlan: (26:53)
Yes, that’s true.
Norm Eisen: (26:55)
What are they?
Pamela Karlan: (26:56)
Treason and bribery.
Norm Eisen: (26:58)
Do President Trump’s demands on Ukraine also establish the high crime of bribery?
Pamela Karlan: (27:05)
Yes, they do.
Norm Eisen: (27:06)
Can you explain why, please?
Pamela Karlan: (27:09)
Sure. The high crime or misdemeanor of bribery, I think it’s important to distinguish that from whatever the U.S. Code calls bribery today. The reason for this, in part, is because …
Norm Eisen: (27:23)
Pamela Karlan: (27:24)
… In 1789 when the Framers were writing the Constitution, there was no federal Criminal Code. The first bribery statutes that the United States Congress passed would not have reached a President at all because the first one was just about customs officials, and the second one was only about judges. It wasn’t until, I don’t know, 60 years or so after the Constitution was ratified, that we had any federal crime of bribery at all. When they say, explicitly, in the Constitution that the President can be impeached and removed from office for bribery, they weren’t referring to a statute. I will say, I’m not expert on substantive federal criminal law. All I will say here is the bribery statute is a very complicated statute.
Pamela Karlan: (28:13)
What they were thinking about was bribery, as it was understood in the 18th century, based on the common law up until that point. That understanding was an understanding that someone, and generally even then, it was mostly talking about a judge. It wasn’t talking about a President because there was no President before that, and wasn’t talking about the King, because the King could do no wrong. What they were understanding then was the idea that when you took private benefits, or when you asked for private benefits in return for an official act, or somebody gave them to you to influence an official act, that was bribery.
Norm Eisen: (28:58)
And so, we have Constitutional bribery here, the high crime and misdemeanor of Constitutional bribery against President Trump.
Pamela Karlan: (29:07)
If you conclude that he asked for the investigation of Vice President Biden and his son for political reasons, that is to aid his re-election, then yes, you have bribery here.
Norm Eisen: (29:20)
In forming that opinion, did you review the memorandum of the President’s telephone call with the Ukrainian President? The one where President Trump asked, “I would like you to do us a favor though,” and also asked about looking into his U.S. political opponents?
Pamela Karlan: (29:38)
Yes, I did rely on that.
Norm Eisen: (29:40)
Did you consider the following testimony from our Ambassador to the European Union, Ambassador Sondland?
Speaker 3: (29:48)
Was there a quid pro quo?
Gordon Sondland: (29:51)
As I testified previously, with regard to the requested White House call and the White House meeting, the answer is yes. Everyone was in the loop.
Norm Eisen: (30:03)
Did you consider that, Professor?
Pamela Karlan: (30:05)
I did consider that, yes.
Norm Eisen: (30:07)
Did you also consider the findings of fact that the Intelligence Committee made including that, and I quote from finding of fact number five, “The President withheld official acts of value to Ukraine, and conditioned their fulfillment on actions by Ukraine that would benefit his personal political interests”?
Pamela Karlan: (30:30)
I did rely on that. In addition, because as I’ve already testified, I read the transcripts of all of the witnesses and the like. I relied on testimony from Ambassador Sondland and testimony from Mr. Morrison, testimony from Lieutenant Colonel Vindman, testimony for Ambassador Taylor. I relied on the fact that when … I think it was ambassador Taylor, but I may be getting, which one of these people wrong, sent the cable that said, “It’s crazy to hold this up based on domestic political concern.” No one wrote back and said, “That’s not why we’re doing it.” I relied on what Mr. Mulvaney said in his press conference.
Pamela Karlan: (31:12)
There’s a lot to suggest here that this is about political benefit. I don’t know if I can talk about another piece of Ambassador Sondland’s testimony now, or I should wait, tell me.
Norm Eisen: (31:24)
Please talk about it.
Pamela Karlan: (31:27)
I want to just point to what I consider to be the most striking example of this, and the most … I spent all of Thanksgiving vacation sitting there reading these transcripts. I ate like a turkey that came to us in the mail that was already cooked because I was spending my time doing this. The most chilling line, for me, of the entire process was the following: Ambassador Sondland said, “He had to announce the investigations …” He’s talking about President Zelensky. “He had to announce the investigations. He didn’t actually have to do them as I understood it.” Then he said, “I never heard, Mr. Goldman, anyone say that the investigations had to start or had to be completed. The only thing I heard from Mr. Giuliani, or otherwise, was they had to be announced in some form.”
Pamela Karlan: (32:15)
What I took that to mean was this was not about whether Vice President Biden actually committed corruption or not. This was about injuring somebody, who the President thinks of as a particularly hard opponent, and that’s for his private beliefs. Because if I can say one last thing about the interests of the United States, the Constitution of the United States does not care whether the next President of the United States is Donald J. Trump or any one of the Democrats, or anybody running on a third party. The Constitution is indifferent to that. What the Constitution cares about is that we have free elections, and so it is only in the President’s interest, it’s not the …
Pamela Karlan: (33:03)
… solely in the president’s interest. It’s not the national interest that a particular president be elected or be defeated at the next election. The Constitution is indifferent to that.
Norm Eisen: (33:12)
Professor Feldman, any thoughts on the subject of the high crime and misdemeanor of bribery and the evidence that Professor Karlan laid out?
Noah Feldman: (33:22)
The clear sense of bribery at the time when the Framers adopted this language in the Constitution was that bribery existed under the Constitution when the president corruptly asked for or received something of value to him from someone who could be affected by his official office. So if the House of Representatives and the members of this committee were to determine that getting the investigations, either announced or undertaken, was a thing of value to President Trump, and that that was what he sought, then this committee and this House could safely conclude that the president had committed bribery under the Constitution.
Norm Eisen: (34:06)
Professor Gerhardt, what is your view?
Michael G.: (34:10)
I, of course, agree with Professor Karlan and Professor Feldman. And I just want to stress that if what we’re talking about is not impeachable, then nothing is impeachable. This is precisely the misconduct that the Framers created a Constitution including impeachment to protect against. If there’s no action… If Congress concludes they’re going to give a pass to the president here, as Professor Karlan suggested earlier, every other president will say, “Okay, then I can do the same thing,” and the boundaries will just evaporate. Those boundaries are set up by the Constitution, and we may be witnessing, unfortunately, their erosion. That is a danger to all of us.
Norm Eisen: (35:01)
What can this committee and the House of Representatives do, sir, to defend those boundaries and to protect against that erosion?
Michael G.: (35:10)
Precisely what you’re doing.
Norm Eisen: (35:16)
Does it matter? I’ll ask all the panelists. Does it matter to impeachment that the $391 million, US tax payer dollars, in military assistance that the president withheld was ultimately delivered? Professor Feldman, does that matter to the question of impeachment?
Noah Feldman: (35:40)
No, it does not. If the president of the United States attempts to abuse his office, that is a complete impeachable offense. The possibility that the president might get caught in the process of attempting to abuse his office, and then not be able to pull it off, does not undercut in any way the impeach ability of the act.
Noah Feldman: (36:01)
If you’ll pardon a comparison, President Nixon was subject to articles of impeachment, preferred by this committee, for attempting to cover up the Watergate break-in. The fact that President Nixon was not ultimately successful in covering up the break-in, was not grounds for not impeaching him. The attempt itself is the impeachable act.
Norm Eisen: (36:21)
Professor Karlan, does it matter to impeachment that the unfounded investigations the president sought were ultimately never announced?
Pamela Karlan: (36:34)
No, it doesn’t. If I could give an example that I think shows why soliciting is enough. Imagine that you were pulled over for speeding by a police officer, and the officer comes up to the window and says, “You were speeding, but if you give me 20 bucks, I’ll drop the ticket.” And you look in your wallet and you say to the officer, “I don’t have the 20 bucks.” And the officer says, “Okay, well, just go ahead. Have a nice day.” The officer would still be guilty of soliciting a bribe there, even though he ultimately let you off without your paying. Soliciting itself is the impeachable offense, regardless whether the other person comes up with it.
Pamela Karlan: (37:14)
So imagine that the president had said, “Will you do us a favor? Will you investigate Joe Biden?” And the president of Ukraine said, “You know what? No, I won’t, because we’ve already looked into this and it’s totally baseless.” The president would still have committed an impeachable act, even if he had been refused right there on the phone. So I don’t see why the ultimate decision has anything to do with the president’s impeachable conduct.
Norm Eisen: (37:44)
What’s the danger if Congress does not respond to that attempt?
Pamela Karlan: (37:50)
Well, we’ve already seen a little bit of it, which is he gets out on the White House lawn and says, “China, I think you should investigate Joe Biden.”
Norm Eisen: (37:57)
Professor Gerhardt, your view?
Michael G.: (38:00)
I certainly would agree with what’s been said. One of the things to understand from the history of impeachment is everybody who was impeached has failed. They failed to get what they wanted. What they wanted was not just to do what they did, but to get away with it.
Michael G.: (38:17)
The point of impeachment, and it’s made possible through investigation, is to catch that person, charge that person, and ultimately remove that person from office. But impeachments are always focusing on somebody who didn’t quite get as far as they wanted to.
Michael G.: (38:33)
It’s as… Nobody’s better than Professor Karlan at hypotheticals, but I’ll dare to raise yet another one. Imagine a bank robbery. The police come and the person’s in the middle of a bank robbery. The person then drops the money and says, “I am going to leave without the money.” Everybody understands that’s robbery… I mean, that’s burglary. I’ll get it right. In this situation, we’ve got somebody really caught in the middle of it. That doesn’t excuse the person from the consequences.
Norm Eisen: (39:10)
Professors, we’ve talked about abuse of power and bribery. When we started, we said we would also discuss obstruction of Congress. So I’d 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?
Michael G.: (39:37)
I think there’s more than enough. As I mentioned 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 had failed to comply with four legislature subpoenas.
Michael G.: (39:54)
Here it is far more than four that this president has failed to comply with. And he’s ordered the executive branch as well, not to cooperate with Congress. Those, together with a lot of other evidence, suggest obstruction of Congress.
Norm Eisen: (40:08)
Professor Karlan, do you agree?
Pamela Karlan: (40:12)
I’m 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 I’m a scholar of the law of democracy. I’m not a scholar of obstruction of justice or obstruction of Congress.
Norm Eisen: (40:28)
We will accept your opinion as a citizen. Professor Feldman.
Noah Feldman: (40:35)
The obstruction of Congress is a problem because it undermines the basic principle of the Constitution. If you’re 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.
Noah Feldman: (41:06)
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 don’t think it’s possible to emphasize this strongly enough. A president who will not cooperate in an impeachment inquiry is putting himself above the law.
Noah Feldman: (41:29)
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.
Norm Eisen: (41:41)
Sir, in forming your opinion, did you review these statements from President Trump?
Donald Trump: (41:48)
We’re fighting all the subpoenas.
Donald Trump: (41:50)
Then I have in Article II, where I have the right to do whatever I want as president.
Noah Feldman: (41:57)
I did. And as someone who cares about the Constitution, the second of those in particular struck a kind of horror in me.
Norm Eisen: (42:07)
Professor Gerhardt, in forming 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 Representatives’ impeachment inquiry?
Michael G.: (42:37)
I read that report last night after I had submitted my statement, but I had watched and read all the other transcripts that were available. The report that was issued reinforces everything else that came before it. So yes.
Norm Eisen: (42:50)
So we’ve talked first about abuse of power and bribery, and then about obstruction of Congress. Professor Gerhardt, I’d like to now ask you some questions about a third impeachable offense, and that is obstruction of justice.
Norm Eisen: (43:10)
Sir, have you formed an opinion as to whether President Trump committed the impeachable offense of obstruction of justice?
Michael G.: (43:19)
Yes, I have.
Norm Eisen: (43:21)
What is your opinion, sir?
Michael G.: (43:22)
Well, based on… So I’ve 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 United States obstructed justice. That’s an impeachable offense.
Norm Eisen: (43:39)
In your testimony, sir, you pointed out that the Mueller report found at least five instances of the president’s obstruction of the Justice Department’s criminal investigation into Russian interference in the 2016 election, correct?
Michael G.: (43:56)
Norm Eisen: (43:57)
The first of those instances was the president’s ordering his then White House counsel, Don McGahn, to fire the special counsel, rather to have the special counsel fired, in order to thwart the investigation of the president, correct?
Michael G.: (44:14)
That is correct.
Norm Eisen: (44:15)
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.
Michael G.: (44:27)
Norm Eisen: (44:28)
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?
Michael G.: (44:41)
Yes, sir, I did.
Norm Eisen: (44:42)
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.
Michael G.: (44:54)
Both individually and collectively, these are evidence of obstruction of justice.
Norm Eisen: (44:59)
How serious is that evidence of obstruction of justice, sir?
Michael G.: (45:03)
It is quite serious, and that’s not all of it, of course. We know, as you’ve mentioned before, and others have mentioned, obstruction of justice has been recognized an impeachable offense, both against President Clinton and President Nixon. This evidence that’s been put forward by Mr. Mueller, that’s in the public record, is very strong evidence of obstruction of justice.
Norm Eisen: (45:24)
Professor Karlan, when you look at the Department of Justice Russia 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?
Pamela Karlan: (45:43)
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 decide our elections. We don’t want foreign interference in those elections. The reason we don’t want foreign interference in those elections is because we’re a self-determining democracy.
Pamela Karlan: (46:14)
If I could just read one quotation to you that I think is helpful in understanding this, it’s somebody who’s 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 self-government.”
Pamela Karlan: (46:36)
The person who wrote those words is now Justice Brett Kavanaugh, in upholding the constitutionality of a federal statute that denies foreign citizens the right to participate in our elections by spending money on electioneering or by giving money to PACs. They have long been forbidden to give contributions to candidates. The reason for that is because that denies us our right to self-government.
Pamela Karlan: (47:02)
And then judge, now Justice Brett Kavanaugh was so correct in seeing this, that the Supreme Court, which as you know, has taken campaign finance case after campaign finance case to talk about the First Amendment. Summarily affirmed here. That is they didn’t even need to hear an argument to know that it’s constitutional to keep foreigners out of our election process.
Norm Eisen: (47:23)
Professor Feldman, you were somewhat of an impeachment skeptic at the time of the release of the Mueller report, were you not?
Noah Feldman: (47:31)
Norm Eisen: (47:32)
What’s changed for you, sir?
Noah Feldman: (47:35)
What changed for me was the revelation of the July 25th call, and then 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. An act against the national security of the United States.
Noah Feldman: (47:59)
That is precisely the situation that the Framers anticipated. It’s very unusual for the Framers’ predictions to come true that precisely. When they do, we have to ask ourselves, someday we will no longer be alive and we’ll go wherever it is we go, the good place or the other place, and we may meet there, Madison and Hamilton. 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.
Norm Eisen: (48:43)
Thank you. I yield my time back to the Chairman.
Jerry Nadler: (48:46)
My time has expired. I yield back. Before I recognize the ranking member for his first round of questions, the committee will stand in a 10-minute humanitarian recess. 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.
Doug Collins: (49:14)
Jerry Nadler: (49:17)
Once the witnesses have left the hearing room, at this time, the committee will stand in a short recess.
Jerry Nadler: (01:09:17)
… the ranking member or his counsel have 45 minutes to question the witnesses. Ranking member.
Doug Collins: (01:09:26)
Thank you Mr. chairman. Before I begin on the questions, I do want to revisit a comment that was made earlier by you, Mr. chairman. It was our demand from minority hearing day, and you stated you would rule on it later. I just wanted to remind you the rules of the house do not permit a ruling on this. They do not permit a vote and you cannot shut it down. And according to your own words, the minority is entitled the day of hearings. It’s a right, rarely exercise. But it’s guards against the majority abusing his power to exclude competing views. Call it the fair and balanced rule.
Doug Collins: (01:09:52)
It’s not the chairman’s right to determine whether we deserve a hearing. It’s not the chairman’s right to decide whether prior hearings were sufficient. It’s not the chairman’s right to decide whether or what we say or think is acceptable. It is certainly not the chairman’s right to violate the rules in order to interfere with our right to conduct a hearing. And I just commend Mr. Sensenbrenner for bringing that forward and look forward to that schedule that you’re getting that scheduled expeditiously.
Doug Collins: (01:10:14)
Moving on. Interesting part. Now we hit phase two. You’ve had one side and I have to say it was eloquently argued by not only the council and by the witnesses involved, but there is always a phase two. A phase two is what is problematic here. Because as I said in my opening statement, this is one that would be, and for many, one of the most disputed impeachments on just the facts themselves.
Doug Collins: (01:10:39)
What was interesting is we actually showed videos of witnesses. In fact, one of them was an opening statement again, I believe. Which again, the closest thing to perfect outside your resume, this side of heaven is an opening statement, because it’s unchallenged. And I agree with that. And it should be. And we’ve had great witnesses here today to talk about this. But we didn’t talk about anything about Kurt Volker who said nothing about it. We said nothing about the AB and Hella Morrison who contradicted Venireman and others. We’ve not done that.
Doug Collins: (01:11:06)
And I don’t expect the majority too, because that’s not what they’re here for. They’re not here to give exculpatory evidence. Just like the shift report gives nothing of exculpatory evidence. And also there’s still evidence being withheld by Adam Schiff that is not come to this committee and we still not got any of the underlying stuff that came from that investigation that, according to [inaudible 01:11:24] 60, we believe we’re supposed to get.
Doug Collins: (01:11:26)
One being the very important part is the inspector general, the [inaudible 01:11:30] inspector general. His testimony is still being held. And there’s a quote secret on it or they’re holding it in classification. Last time I checked, we have plenty of places in his building and other buildings to handle classified information if they still want to do that. But it’s being withheld from us. I have to believe, now there is a reason it’s being withheld. Because undoubtedly, there’s a problem with it, and we’ll just have to see as that goes forward.
Doug Collins: (01:11:51)
So anybody in the media, anybody watching today, the first 45 minutes we went through have painted a very interesting picture. It’s painted an interesting picture that goes back many, many years. It paints an interesting picture of picking and choosing which part of the last few weeks we want to talk about. And that’s fine because we’ll have the rest of the day to go about this. But professor Turley, you’re now well rested. And you’ve got one question. You were asked a yes, no only, and not given to elaborate, but I’m going to start here. Let’s just do this.
Doug Collins: (01:12:25)
Elaborate if you would, because you tried to when the question it was asked to you. And then if there’s anything else that you’ve heard this morning that you would disagree with or have, and for some, I will go ahead and allow you some time to talk. By the way, just for the information, Mr. chairman, this is the coldest hearing room in the world. And also for those of you who are worried about, I’m uncomfortable, upset, I’m happy as a Lord. But this chair is terrible. I mean it is amazing. But Mr. Turley, go ahead.
Well, it’s a challenge to think of anything I was not able to cover in my robust exchange with majority of council. But I’d like to try.
Doug Collins: (01:13:03)
There’s a couple of things I just wanted to highlight. I’m 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 I’d like to start with the issue of bribery. The statement has been made, and not just by these witnesses, but chairman Schiff and others that this is a clear case of bribery. It’s not.
And chairman Schiff said that it might not fit today’s definition of bribery, but it would fit the definition back in the 18th century. Now putting aside Mr. Schiff’s turn towards originalism, 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 in the 18th century as it is in this century. The statement that was made by one of my esteemed colleagues is that a bribery really wasn’t defined until much later. There was no bribery statute and that is certainly true. But it obviously had a meaning. That’s why they put it in this important standard. Bribery was not this overarching concept that chairman Schiff indicated. Quite to the contrary, the original standard was treason and bribery that led Mason to object that it was too narrow.
If robbery 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 didn’t disagree with Mason’s view that bribery was too narrow. What they disagreed with was when he suggested maladministration to add to the standard, because he wanted it to be broader.
And what James Madison said is that that’s too broad that that would essentially create what you might call a vote of no confidence in England. It would basically allow Congress to toss out a president that they did not like. But once again, we’re all channeling the intent of the framers and that’s always a dangerous thing to do. The only more dangerous spot to stand in is between Congress and an impeachment as an academic.
But I would offer instead the words of the framers themselves. You see, in that exchange, they didn’t just say bribery was too narrow. They actually gave an example of bribery. And it was nothing like what was described. When the objection was made by Mason… I’m sorry, by Madison, ultimately, the framers agreed. And then Morris, who was referred to earlier, did say we need to adopt this standard. But well, what was left out was what came afterwards.
What Morris said is that we need to protect against bribery because we don’t want anything like what happened with Louis the 14th and Charles the second. That is, the example he gave of bribery was accepting actual money as the head of state. So what had happened in that example that Morris gave as his example of bribery was that Louis the 14th, who was a bit of a recidivist when it came to bribes, gave Charles the second 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 also was an exchange for his converting to the Catholicism. But that wasn’t some broad notion of bribery, it was actually quite narrow. So I don’t think that dog will hunt in the 18th century. And I don’t think it will hunt today. Because if you take a look at the 21st century, bribery is well defined. And you shouldn’t just take our word for it, you should look to how it’s defined by the United States Supreme Court.
In a case called McDonald 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. And what they said was that, you cannot take the bribery crime and use what they called a boundless interpretation.
All the justices said that it’s a dangerous thing to take a crime like bribery and apply a boundless interpretation. They rejected the notion, for example, that bribery could be used in terms of setting up meetings and other types of things that occur in the course of a public service career. 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 don’t have a dog in this fight. But you can’t accuse a president of bribery.
And then when some of us know that the Supreme Court has rejected your type of boundless interpretation, say, well, it’s just impeachment, we really don’t have to prove the elements. That’s a favorite mantra that is sort of close enough for jazz.
Well, this is an improvisational jazz. Close enough is not good enough. If you’re going to accuse a president of bribery, you need to make it stick, because you’re trying to remove a duly elected president of the United States. Now, it’s unfair to accuse someone of a crime and when others say, “Well, those interpretations you’re using to define the crime are not valid, and to say, they don’t 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 that judiciary committee agreed that Bill Clinton had committed perjury. That’s 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.
Now Johnson [inaudible 01:20:19] because Johnson was a trapdoor crime. They basically created a crime knowing that Johnson wanted to replace secretary of war stamp. And Johnson did. Because they had serious trouble in the cabinet. So they created a trapdoor crime, waited for him to fire the secretary of war, and then they impeached him. But there’s no question he committed the crime. It’s just the underlying statute was unconstitutional.
So I would caution you only about bribery but also obstruction. I’m sorry, ranking member, you…
Doug Collins: (01:20:55)
No, you’re doing a good job. Go ahead.
I’d also caution you about obstruction. Obstruction is a crime also with meaning. It has elements. It has controlling case authority. The record does not establish obstruction in this case. That is, what my steam colleagues said was certainly true. If you accept all of their presumptions, it would be obstruction. But impeachments have to be based on proof, not presumptions.
That’s the problem. When you move towards impeachment on this abbreviated schedule that 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. And here’s my concern. The theory being put forward is that president Trump obstructed Congress by not turning over material requested by the committee. And citations have been made to the third article of the Nixon impeachment.
Now first of all, I want to confess. I’ve been a critic of the third article, the Nixon impeachment my whole life. My hair catches on fire every time someone mentions the third article. Why? Because you would be replicating one of the worst articles written on impeachment. Here’s the reason why. Peter Rodino’s position as chairman of judiciary was that Congress alone decides what information may be given to it, alone.
His position was that the courts have no role in this. And so, by that theory, any refusal by a president based on executive privilege or immunities would be the basis of impeachment. That is essentially the theory that’s being replicated today. President Trump has gone to the courts. He’s 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 where my colleagues talked about his saying that there’s this article two. And he gives us overriding interpretation.
I share that criticism. You’re doing the same thing with article one. You’re saying article one gives us complete authority that when we demand information from another branch, it must be turned over or we’ll impeach you in record time. Now making that worse is that you have such a short investigation. It’s a perfect storm. You set an incredibly short period, demand a huge amount of information, and when the president goes to court, you then impeach him. Now, does that track with what you’ve heard about impeachment? Does that track with the rule of law that we’ve talked about?
And 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 recognize there are executive privilege arguments that can be made. It didn’t say, “You had no right coming to us. Don’t darken our doorstep again.” It said, “We’ve heard your arguments. We’ve heard Congress’s arguments. And you know what? You lose. Turn over the material to Congress.”
You know, what that did for the judiciary is it gave this body legitimacy. It wasn’t the Rodino extreme position that only you decide what information can be produced. Now recently, there’s some rulings against president Trump, including a ruling involving Don McGahn. Mr. Chairman, I testified in front of you a few months ago. And if you recall, we had an exchange and I encouraged you to bring those actions. And I said, I thought you would win. And you did.
And I think it was an important win for this committee, because I don’t agree with president Trump’s argument in that case. But that’s an example of what can happen, if you actually subpoena witnesses and go to court. Then you have an obstruction case because of court issues and order. And unless they stay that order by a higher court, you have obstruction. But I can’t emphasize this enough and I’ll say 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. It’s your abuse of power. You are doing precisely what you’re criticizing the president for doing.
We have a third branch that deals with conflicts of the other two branches. And what comes out of there and what you do with it is the very definition of legitimacy.
Doug Collins: (01:26:19)
Let’s continue on with some fact what you’ve been talking about. First of all, the McDonald case. How was that decided? Was that a very split court? Were they really torn about that? That case came out? How?
Yeah. It came out unanimous. So did a couple of the other cases I cite in my testimony, which also refute these criminal theories.
Doug Collins: (01:26:36)
One of the things that you said also, and I think it could be summed up, and I use it sometimes as what’s the layman’s language here, is facts don’t matter. And that’s what I heard a lot of in the 45 minutes. Well, the facts said this, or the facts are disputed this. But if this, if that, if this, it rises to an impeachment level. And that will, sort of what you’re saying that crimes… 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 it that facts don’t matter, that we’re also, as you’ve said, abusing our power as we go forward here and looks, looking at what people would actually deem as an impeachable offense?
I think so. And 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 more ironic 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 determining whether he could withhold the evidence.
Doug Collins: (01:27:49)
Mr., I have a question on that. Because you brought up Mr. Obama, you brought up other presidents in this process. Is there not an obligation by the office of the president? We’ll just use that term not to be Obama, Trump, Clinton. Anyway. In their obligation by the president to actually assert the constitutional privileges or authorities that have been given or when accused of something or crime or anything else.
Yeah, I think that president Obama has invoked too broadly. But on the other hand, he has actually released a lot of information. I’ve been friends with Bill Barr for a long time. We disagree on executive privilege. I’m a Madisonian scholar. I tend to favor Congress in disputes. And he is the inverse. His natural default is article two. My natural default is article one. But he actually has released more privileged information than any attorney general in my lifetime, including the Mueller report. These transcripts of these calls would be core executive privilege material. There’s no question about that.
Doug Collins: (01:28:51)
I think that’s something that is, again, not pointed out when you’re doing a back and forth, what we’re doing. The transcript of the call released, the things that have been released to the Mueller. We go back through this. There has been a work in progress by this administration. I think the interesting point that I want to talk about is two things. Number one, Congress has abused of its own power, which has not been discussed here. Even internally, where we have had committees not willing to let members see transcripts, not being willing to give those up under the guise of impeachment or you shouldn’t be able to say them. Although the rules of the house were never invoked to stop that.
Doug Collins: (01:29:25)
What we’re seeing here and I want to add something else before we move on to something else is the timing issue that you’ve talked about here. Again, I believe we talked about this with the Mueller report. We talked about this with everything else. This is one of the fastest… You know, we’re on track. I said this earlier, we’re on a clock. The clock in the calendar or seemingly dominating this is irregardless of what anybody in this community, and especially members not of this committee, to think about what we’re actually seeing of fact witnesses and people moving forward. We don’t have that yet.
Doug Collins: (01:29:51)
So the question becomes is, an election pending, when facts are in dispute, and you made a to mention this, this is one in which the facts are not unanimous. There’s not universal, there’s not even bipartisan agreement on the facts and what they lead to, especially when there’s exculpatory evidence that has been presented not in a Schiff report, but in other reports. 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. That’s the case with Johnson. Narrow was the case with Clinton. They tend not to survive. They tend to collapse in front of the Senate. Impeachments are like buildings. There’s a ratio between your foundation and your height. And this is the highest structure you can build under the constitution. You want to build an impeachment, you have to have a foundation broad enough to support it. This is the narrowest impeachment in history. You could argue with Johnson.
Johnson, it might be actually be the fastest impeachment. Johnson actually was… What happened to Johnson was actually the fourth impeachment attempt against Johnson. And actually the record goes back a year before. They laid that trapdoor a year before. So it was not as fast as it might appear.
Doug Collins: (01:31:06)
And again, let’s go back. I want to go back to something else. And you talked about robbery. And Mr. Taylor is going to address all a good bit of that. But I want to go back to something that you talked about, because it really bothers, I think the perception out there of what’s going on here in the disputed transcript being the… You know, the call has been laid out there. The president said I wanted nothing for this. There’s all this exculpatory evidence. It was not presented in the last 45 minutes. But there is one thing that’s interesting is… And it’s been reported in the mainstream media and it goes back to your issue, does crimes matter or what this definition is. Our majority initially accused the president. They kept saying quid pro quo and we still hear it as we go through.
Doug Collins: (01:31:40)
But then, as reported, they used a political focus group to determine whether the phrase polled well, and apparently it didn’t poll well, so they agreed to change their theory of the case to bribery. Does that not just feed into more of what you’re saying about how we’re actually the crime matters and that facts do matter in a case like it or at least should matter?
It does. There’s a reason why every past impeachment has established crimes. And it’s obvious. It’s not that you can’t impeach on a non crime. You can. And In fact, non crimes have been part of past impeachments. It’s just that they’ve never gone up alone or primarily as the basis of impeachment. That’s the problem here. If you prove a quid pro quo, you might have an impeachable offense. But to go up only on a noncriminal case will be the first time in history. So why is that the case?
The reason is that crimes have an established definition and case law. So there’s a concrete independent body of law that assures the public that this is not just political, that this is a president who did something they could not do. You can’t say the president is above the law. If you then say the crimes you accused them of really don’t have to be established.
Doug Collins: (01:32:54)
I think that’s the problem right now that many members of this house member, members of this body and especially the American public are looking at that if you say he’s above law but then you don’t define it or you can find the facts to whatever you want to have. That is the ultimate railroad that everybody in this country should not be afforded. Everyone is afforded due process. Everyone is afforded the process to actually make their case heard.
Doug Collins: (01:33:13)
That’s the concern that I have in this committee right now. And we’ve already seen it voted down that we’re not going to look at certain fact witnesses. We’re not even been promised other hearings in which this committee, and the words and the concerns that echoed almost 20 years ago from the chairman where he did not want to take the advice of another body or entity giving us the judiciary committee a report and then acting as a rubber stamp if we didn’t do this.
Doug Collins: (01:33:35)
Just as a reminder, it was almost two and a half weeks before the discussion of this kind of a hearing back then, before the hearing actually took place. These are the kind of things that as timing goes… I think the obvious point here is that timing is becoming more of the issue because the concern has been stated before about elections. They’re more concerned about trying to fit the facts in to what the president supposedly did, presumably did, and make those hypotheticals stick to the American public.
Doug Collins: (01:34:03)
The problem is their timing, the definition of crimes, the definition of the fact that bribery has defined by the Supreme court is not making their case. It’s not fitting what they need to do. The issue that 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 the Inspector General’s report from the ICT committee being withheld even in a classified setting.
Doug Collins: (01:34:25)
These are the problems that you have now highlighted, and I think that need to be… And this is why the next 45 minutes and the rest of the day is going to be applicable. Because both sides matters. And at the end of the day, this is a fast impeachment. The fastest we’re saying, based on disputed facts on crimes or disturbances that are made up with the facts to fit each part. With that, I’m going to turn it over to my counsel, Mr. Tyler.
Professor Turley, I’d like to turn to the subject of partisanship as the founders feared it and as it exists today. It’s a subject Alexandra Hamilton was very concerned about when it came to impeachment. You wrote some prescient words in federalist paper number 65. In advocating for the ratification of the constitution, the Federalist papers laid out the reasons Madison and principal 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, harsh realities, influence and interest on one side or on the other. And in such cases, there will always be the greater danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.” Professor Turley, do you think Hamilton predicted a real danger here of hyper-partisan impeachments?
Well, certainly, that has proven to be the case. It certainly of the two impeachments that we have seen. It’s also important to note by the way, that we often think that our times are unique. This provision wasn’t just written for times like ours, it was written in times like ours. It is, you know, these are people that were even more severe than the rhetoric today. I mean you have to keep in mind, Jefferson referred to the administration of the federalist as the reign of the witches.
So this was not a period where people didn’t have the strong feelings. And indeed, 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. That’s what the sedition law was, is you were trying to kill people that disagreed with you.
But what’s notable is, they didn’t have a whole slew of impeachments. They knew not to do it. And I think that that’s a lesson that actually can be taken from that period. That the framers created a standard that would not be endlessly fluid and flexible. And that standard has kept us from impeachment despite periods in which we have really despised each other. And that I think is the most distressing thing for most of us today, is there’s so much more rage than reason.
You can’t even talk about these 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.
Professor Turley, in your testimony, you’ve said that when it comes to impeachment, we don’t need happy ideological warriors, we need circumspect legal analysis. But let’s take a quick look at the deeply partisan landscape on which this particularly partisan impeachment is being waged. I mean, the democratic leaders pushing Trump’s impeachment represents some of the most far left urban coastal areas of the country. The bar graphs here show counties and the height of the bars indicate total votes cast and the color of the bars show the margin of victory for the winter in the 2016 presidential election.
As you can see the parts of the country represented by these Democrat impeachment leaders voted overwhelmingly for Hillary Clinton during the last presidential election.
Also, during the 2016 presidential election, lawyer campaign contributions tilted 97% for Clinton, 3% for Trump. And the situation is essentially the same at law schools around the country, including those represented on the panel here today. Now, professor Turley, I’d like to turn now to the partisan process that defines these impeachment proceedings. This is how the Nixon impeachment effort was described in the bipartisan 1974 staff report.
You were talking about the initiation of the impeachment inquiry. 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 the Clinton impeachment inquiry, it was supported by all Republicans in 30…
Inquiry. It was supported by all Republicans in 31 Democrats. Now, fast forward to the current impeachment, the House Democrats, Trump impeachment drive was subsequently approved only by Democrats and indeed it was approved over the opposition of two Democrats in all Republicans. Professor Turley, how does this trend comport with how the founders understood impeachment should operate?
Well, I believe that the founders certainly had aspirations that we would come together as a people, but they didn’t have any delusions. It certainly was not something that they achieved in their own lifetime, although you’d be surprised that some of these framers actually did at the ends of their lives, including Jefferson and Adams, sort of reconcile indeed. I think one of the most weighty and significant moments in constitutional history is the one that is rarely discussed that Adams and Jefferson reached out to each other, that they wanted to reconcile before they died, and they met and they did.
And maybe that is something that we can learn from, but I think that the greater thing I would point to is the seven Republicans in the Johnson impeachment. If I could just read one thing to you and everyone often talks about one of the senators, but not this one, and that’s Lyman Trumbull, who was a fantastic Senator. He became a great advocate for civil liberties. You have to understand that most of these senators, when it was said that they jumped into their political graves, it was true. Most of their political careers ended.
They knew they would end because of the animosity of the period. Trumbull said the following. He said, “Once this set the example of impeaching a president for what when the excitement of the hour shall have subsided will be regarded as insufficient causes. No future president will be safe who happens to differ from the majority of the House and 2/3 of the Senate.” He said, “I tremble for the future of my country. I cannot be an instrument to produce such a result and at the hazard of the ties even a friendship and affection until calmer times shall do justice to my motives. No alternatives are left to me.”
And he proceeded to give the vote that ended his career. You can’t wait for calmer times. The time for you is now, and I would say that what Trumbull said has even more bearing today because I believe that this is much like the Johnson impeachment. It’s manufactured until you build a record. I’m not saying you can’t build a record, but you can’t do it like this and you can’t impeach a president like this.
Now, Professor Turley, there’s a recent book on impeachment by Harvard law professor Lawrence Tribe and Joshua Matz that discusses what they consider to be a legitimate impeachment process. The book is pretty anti-Trump. It’s called To End a Presidency, and in that book, the authors state the following. “When an impeachment is purely partisan or appears that way, it is presumptively illegitimate. When only Republicans or only Democrats view the president’s conduct is justifying removal, there’s a strong risk that policy disagreements or partisan animus have overtaken the proper measure of congressional impartiality.”
Another quote is “We can also expect that opposition leaders to the president will be pushed to impeach and will suffer internal blow back if they don’t. The key question is whether they will cave to this pressure. One risk of our broken politics is that the house will undertake additional doomed partisan impeachment, a development that would be disastrous for the nation as a whole.” Professor Turley, is that advice being followed by House Democrats in this case?
Not on this schedule. The one thing, if you look at, I laid out the three impeachments, the one thing that comes out of those impeachments in terms of what bipartisan support occurred is that impeachments require a certain period of saturation and maturation. That is the public has to catch up. I’m not prejudging what your record would show, but if you rush this impeachment, you’re going to leave half the country behind, and certainly that’s not what the framers wanted. You have to give the time to build a record. This isn’t an impulse buy item.
You’re trying to remove a duly elected president of the United States and that takes time. It takes work. But at the end, if you look at Nixon, which was the gold standard in this respect, the public did catch up. They originally did not support impeachment, but they changed their mind. You changed their mind and so did, by the way, the courts, because you allow these issues to be heard in the courts.
Professor Turley, the Nixon and Clinton impeachments were debated solidly in the high crimes category. Correct?
Crimes were at issue, but on the evidence presented so far, is it your view that there is no credible evidence that any crime was committed by President Trump?
Yes. I’ve gone through all of the crimes mentioned they do not meet any reasonable interpretation of those crimes and I’m relying on express statements from the federal courts. I understand that the language and the statutes are often broad. That’s not the controlling language. It’s the language of the interpretation of federal courts and I think that all of those decisions stand mightily in the way of these theories. And if you can’t make out those crimes, then don’t call it that crime. If it doesn’t matter, then what’s the point? Call it treason, call it endangered species violations if none of this matters.
So that would put the Democrats’ move to impeach President Trump in the category of high misdemeanors. In James Madison’s notes of the constitutional Convention debates, they clearly show that the term high misdemeanor was explicitly referred to as a technical term. And it wasn’t just something that any majority of parties and members might happen to think was at any given time. And often when there’s a debate about a technical term, people turn to dictionaries. In the first truly comprehensive English dictionary was Samuel Johnson’s A Dictionary of the English Language.
It was first published in 1755 and the founders in many of their libraries had this book and on their desks. And the Supreme Court still cites Johnson’s dictionary to determine the original public understanding of the words used in The Constitution. So here’s how the 1785 edition of Johnson’s dictionary defines the relevant terms in high misdemeanor. High, the relevant sub definition is capital great opposed to little as high treason. Definition of misdemeanor is defined as something less than an atrocious crime. And atrocious is defined as wicked in a high degree, enormous worldly criminal.
So if you look at how these words were defined during the time The Constitution was debated and ratified, a misdemeanor is something less than an atrocious crime and atrocious is wicked in a high degree and as a result a high misdemeanor must be something like just less than a crime that’s wicked in a high degree. Now, Professor Turley, does that generally comport with your understanding of the phrase high misdemeanors that was understood by the founders with the purpose of narrowing that phrase to prevent the sorts of abuses that you’ve described?
It did. I mean if you compare this to the extradition clause, the language that was used was different for a reason. They did not want to establish a type of broad meeting. According to the view of some people as to the meaning of high crimes and misdemeanors, those provisions would be essentially identical and that’s clearly not what they wanted.
Professor Turley, next, I’d like to explore how this impeachment is based on no crime and no request for false information unlike the Nixon and Clinton impeachments. I’d like to start with some background. The American media for years has been asking questions about former Vice President Biden’s son and his paid involvement with a corrupt Ukrainian energy company Burisma. Here’s one example of those media reports from June, 2019 it was an ABC news investigation title Hunter Biden’s Foreign Deals Did Joe Biden’ Son Profit Off Father’s Position as Vice President.
There’s a still clip of it here with a Burisma promotional video, and many have seen the video of Joe Biden talking about getting the Ukrainian prosecutor who was investigating Burisma fired. And a New York Times article says from May 1, 2019 referring to Joseph R. Biden, one of his most memorable performances came on a trip to Kiev in March 2016 when he threatened to withhold a billion dollars in the United States loan guarantees if Ukraine’s leaders did not dismiss the country’s top prosecutor. Among those who had a stake in the outcome was Hunter Biden, Mr. Biden’s younger son, who at the time was on the board of an energy company owned by a Ukrainian oligarch who had been in the sites of the fired prosecutor general.
So even if Hunter Biden engaged in no crimes regarding sitting on the board of Burisma, if an investigation led to the bankruptcy of the corrupt company, Hunter Biden’s lucrative position on the Burisma board would have been eliminated along with his $50,000 a month payments. That was his stake in a potential prosecution involving the company.
In fact, even Neil Katyal, the former acting solicitor general under President Obama and his recent book and titled Impeach says the following, “Is what Hunter Biden did wrong. Absolutely. Hunter Biden had no real experience in the energy sector, which made him wholly unqualified to sit on the board of Burisma. The only logical reason the company could’ve had for appointing him was his ties to Vice President Biden. This kind of nepotism isn’t only wrong, it is a potential danger to our country since it makes it easier for foreign powers to buy influence. No politician from either party should allow a foreign power to conduct this kind of influence pedaling with their family members.”
Also, Lieutenant Colonel Veneman was asked at his hearing, would it ever be us foreign policy in your experience to ask a foreign leader to open a political investigation? And he replied, “Certainly the president is well within his right to do that.” So the American media and others were asking questions about Hunter Biden and his involvement in the Ukraine and President Trump in his call with the Ukrainian president simply asked the same questions the media was asking. Now, Professor Turley, is it your understanding that the House impeached Nixon for helping cover up his administration’s involvement in a crime and that the evidentiary record showed Nixon knew of criminal acts and sought to conceal them, including tape recordings of President Nixon ordering a cover up of the Watergate break in shortly after it occurred?
Is it also your understanding that the house impeached Clinton for the crime of lying under oath to deny a woman suing him for sexual harassment evidence she was legally entitled to?
So there were requests for false information in both the Nixon and Clinton scandals by the president’s aides or associates or by the president himself. Correct?
But there are no words in the four corners of the transcript of President Trump’s call that show a request for a false information. Are there?
No, and that’s one of the reasons why if you want to establish the opposing view, you have to investigate this further.
Now, let me walk through this standard of evidence House Democrats insisted upon during the Clinton impeachment. The minority views in the Clinton impeachment report were signed by among others, current Senate Minority Leader Schumer and current House Judiciary Committee Chairman Nadler, and they say that one of the professors who testified “has meticulously documented how in the Nixon inquiry, everyone agreed, the majority of the minority and the president’s council, that the standard of proof for the committee in the House was clear and convincing evidence.”
Professor Turley, would you agree that the evidence compiled to date by House Democrats during these current impeachment proceedings fails to meet the standard of clear and convincing evidence?
I do. By considerable measure.
Now, let me turn again to the book To End a Presidency. In that book, the authors state the following “except in the most extraordinary circumstances, impeaching with a partial or plausibly contested understanding of key facts is a bad idea.” Professor Turley, do you think that impeaching in this case would constitute impeaching with a partial or plausibly contested understanding of key facts?
I think that that’s clear because this is one of the fitness records ever to go forward on impeachment. I mean the Johnson record once again we can debate because that was the fourth attempt at an impeachment, but this is certainly the thinnest of a modern record. If you take a look at the size of the record of Clinton and Nixon, they were massive in comparison to this, which is almost wafer thin in comparison and it has left doubts. Not just in doubts in the minds of people supporting President Trump, doubts in the minds of people like myself about what actually occurred.
There’s a difference between requesting investigations and a quid pro quo. You need to stick the landing on the quid pro quo. You need to get the evidence to support it. It might be out there, I don’t know, but it’s not in this record. I agree with my colleagues. We’ve all read the record and I just come to a different conclusion. I don’t see proof of a quid pro quo no matter what my presumptions, assumptions or bias might be.
On that point, I’d like to turn now to the current impeachment procedures. Professor Turley, would you agree that a full and fair adversary system in which each side gets to present its own evidence and witnesses is essential to the search for truth?
It is. And the interesting thing is on the English impeachment model that was rejected by the framers, they took the language but they actually rejected the model of the impeachment from England, particularly in terms of Hastings. But even in England, it was a robust adversarial process. If you want to see adversarial work, take a look at what Edmund Burke did to Warren Hastings. I mean he was on him like ugly on moose for the entire trial.
And as you know in the minority views in the Clinton impeachment report, the House Democrats wrote the following. “We believe it is incumbent upon the committee to provide these basic protections as Representative Barbara Jordan observed during the Watergate inquiry, impeachment not only mandates due process but due process quadrupled.” The same minority views also support the right to cross examination in a variety of contexts in the Clinton example. Now, Professor Turley, you describe how Monica Lewinsky wasn’t allowed to be called as a witness in the Senate impeachment trial and after her original testimony revealed how she had been told to lie about her relationship with President Clinton by his close associates.
It’s a cautionary tale about the dangers of denying he witnesses. Can you elaborate on that?
Yeah. The only reason I mentioned that is that was in a portion of my testimony dealing how you structure these impeachments. What happened during the Clinton impeachment and it came up during the hearing that we had previously. I was a question of how much the House had to do in terms of Clinton impeachment because you had this robust record created by the independent counsel and they had a lot of testimony, video tapes, etc. So the House basically incorporated that and the assumption was that those witnesses would be called at the Senate, but there was a failure at the Senate.
The rules that were applied in my view, were not fair. They restricted witnesses to only three and that’s why I brought up the Lewinsky matter. About a year ago, Monica Lewinsky revealed that she had been told that if she signed that affidavit that we now know is untrue, that she would not be called as a witness. If you had actually called live witnesses, that type of information would have been part of the record.
Jerry Nadler: (01:54:52)
Gentleman yields back. I note that this is the moment in which the White House would have had an opportunity to question the witnesses, but they declined our invitation. So we will now proceed to questions under the five minute rule. I yield myself five minutes for the purpose of questioning the witnesses. Professor Feldman, would you respond to professor Turley’s comments about bribery, especially about the relevance of the elements of criminal bribery?
Noah Feldman: (01:55:21)
Yes. Bribery had a clear meaning to the framers. It was when the president, using the power of his office, solicits or receive something of personal value from someone affected by his official powers. And I want to be very clear, The Constitution is law. The Constitution is the supreme law of the land. So of course, Professor Turley is right that you wouldn’t want to impeach someone who didn’t violate the law, but The Constitution, the supreme law of the land specifies bribery as a ground of impeachment as it specifies other high crimes and misdemeanors.
Noah Feldman: (01:55:54)
Bribery had a clear meaning. If the House believes that the president solicited something of value in the form of investigations or an announcement of investigations, and then he did so corruptly for personal gain, then that would constitute bribery under the meaning of The Constitution. And it would not be lawless, it would be bribery under the law.
Jerry Nadler: (01:56:15)
So the Supreme court case in McDonald interpreting the federal bribery statute and other decisions interpreting the statutes would not be relevant?
Noah Feldman: (01:56:26)
The Constitution is the supreme law and the constitution specifies what bribery means. Federal statutes can’t trump The Constitution. They can’t defeat what’s in The Constitution.
Jerry Nadler: (01:56:36)
Thank you. Professor Gerhardt, would you respond to Professor Turley’s comments about obstruction of justice or obstruction of Congress please?
Michael G.: (01:56:42)
Yes. On obstruction of justice, one thing I want to emphasize is obstructing justice is not just about obstruction of a court. It’s obstruction of any lawful proceeding and so that obstruction isn’t limited to whatever is happening on the courts. And obviously here, there are judicial proceedings going on, but there’s also a really critical congressional proceeding, which brings us to obstruction of Congress. With the obstruction in Congress, I don’t think, in fact, I can say, I know there’s never been anything like the president’s refusal to comply with with subpoenas from this body.
Michael G.: (01:57:21)
These are lawful subpoenas. These have the force of law to them. These are the things that every other president has complied with and actually acted in alignment with except for President Nixon in a small but significant set of materials.
Jerry Nadler: (01:57:34)
Professor Turley implied that as long as the president asserts a fanciful, ultimately non-existent privilege, like absolute immunity, he can’t be charged with obstruction of Congress because after all, it hasn’t gone through the courts yet. Would you comment on that? Professor Gerhardt?
Michael G.: (01:57:53)
I’m sorry, I missed part of the question. Please. I’m sorry.
Jerry Nadler: (01:57:55)
Professor Turley implied that we can’t charge the president with obstruction of Congress for refusing all subpoenas as long as he has any fanciful claim until the courts reject those fanciful claims.
Michael G.: (01:58:08)
I have to respectfully disagree. No, his refusal to comply with those subpoenas is an independent event. It’s apart from the courts. It’s a direct assault on the legitimacy of this inquiry, which is crucial to the exercise of this power.
Jerry Nadler: (01:58:22)
Thank you. Professor Carlin, I’ll give you a chance to respond if you would like as well to the same question.
Pamela Karlan: (01:58:28)
Yeah. I wanted to respond to the first question about bribery …
Jerry Nadler: (01:58:31)
Yeah. Go ahead.
Pamela Karlan: (01:58:31)
… If I could instead. Which is although counsel for the minority read Samuel Johnson’s definitions of high and crime and misdemeanor, he didn’t read the definition of bribery. Now I have the 1792 version of Johnson’s dictionary. I don’t have the initial one and there he defines bribery as the crime of giving or taking rewards for bad practices. And so if you think it’s a bad practice to deny military appropriations to an ally that have been given to him, if you think it’s a bad practice not to hold a meeting to buck up the legitimacy of a government that’s on the front line and you do that in return for the reward of getting help with your reelection, that’s Samuel Johnson’s definition of bribery.
Jerry Nadler: (01:59:20)
Professor Feldman, if Washington were here today, if he were joined by Madison and Hamilton and other framers, what do you believe they would say if presented with the evidence before us about President Trump’s conduct?
Noah Feldman: (01:59:32)
I believe the framers would identify President Trump’s conduct as exactly the kind of abuse of office, high crime and misdemeanor that they were worried about and they would want the House of Representatives to take appropriate action and to impeach.
Jerry Nadler: (01:59:44)
And they would find obstruction of justice, obstruction Congress and abusive power or some of them?
Noah Feldman: (01:59:50)
I believe that if the evidence supported those things in their minds and if the Congress determines that that is what the evidence means, then they would believe strongly that that’s what Congress ought to do.
Jerry Nadler: (01:59:59)
Thank you. I’ll yield back the balance of my time on that. Recognize the ranking member of the Judiciary Committee, the gentleman from Georgia, Mr. Collins for five minutes for questioning the witnesses.
Doug Collins: (02:00:09)
This just keeps getting more amazing. I think we just put in the jury pool, the founding fathers and said, what would they think? I don’t think we have any idea what they would think in all due respect with this because of the different times, the different things that we’ve talked about. But also to in some way insinuate on a live mic with a lot of people listening that the founding fathers would have found President Trump guilty is just simply malpractice with these facts before us. That is just simply pandering to a camera. That is simply just not right.
Doug Collins: (02:00:42)
I mean, this is amazing. We can disagree. What’s amazing on this committee is we don’t even disagree on the facts. We cannot even find a fact right now with it is not going through the public testimony and also even the transcripts at all that is not. Mr. Turley, are we going to deputize somebody between now and the founders into the jury pool here?
Well, first of all, only I will speak for James Madison. No, no, we all will speak for James Madison with about the same level of accuracy. It’s a form of necromancy that academics do all the time and that’s what we get paid for. But I just want to note a couple of things. First of all, I do find it rather surprising that you would have George Washington in this jury pool. I would strike him for cause. George Washington was the first guy to raise extreme executive privilege claims. He had a rather robust view of what a president could say.
If you were going to make a case to George Washington that you could impeach over a conversation he had with another head of state, I expect his hair, his powdered hair would catch on fire. Also, I just want to note one other thing and I am impressed with carrying an 18th century copy of Samuel Johnson with you.
Pamela Karlan: (02:01:57)
It’s just the online version.
Just the online version you. As an academic, I was pretty darn impressed. I just want to note one thing, which may explain part of our difference. The statutes today on bribery are written broadly just like they were back then. That was my point. The meaning of those words are subject to interpretation. They’re written broadly because they don’t want them to be too narrow. That was the case in the 18th century as they are today, but the idea that bad practices could be the definition of bribery. Really? Is that what you get from the Constitutional Convention that they had practices?
Is that why Mason wanted to put in maladministration because bad practices is not broad enough? This is where I disagree. Now the other thing that I just wanted to note is and I have so much respect for Noah and I’m going to just disagree on this point. I feel it is a rather circular argument to say, well, The Constitution is law. Upon that we are in agreement, but The Constitution refers to a crime to say, well, you can’t trump The Constitution because it defines the crime. It doesn’t define the crime. It references the crime. Now the crime, the examples were given during the Constitutional Convention and those do not comport with bad practices.
They comport with real bribery. But to say that the Supreme Court’s decision on what constitutes bribery is somehow irrelevant is rather odd. What The Constitution contains is a reference to a crime and then we have to decide if that crime has been committed.
Doug Collins: (02:03:39)
I think one of the things that came out just a second ago was also this discussion of, and we had had this discussion earlier about is it the presidential prerogative and also members of the president’s cabinet to assert privileges and rights and we talked about the fast and furious with President Obama. Remember, Attorney General Holder was held in contempt by this body for withholding and not complying with subpoenas. I mean you just can’t pick and choose history here what you want to have, but I think also you just made a statement and it was brought up earlier talking about bad practice.
Doug Collins: (02:04:09)
It is also the law of the land that we are supposed to ensure that countries given aid are not corrupt. And I think this is also the something’s missing from this discussion as well. If their president has had a long seated distrust, a foreign country, especially Ukraine and others with a history of corruption. I made this statement earlier. It’s in the report from the hipsy side on our side. 68% of those polled in the Ukraine over the previous year had bribed a public official. Ukraine had corruption issues. It came back from the Obama Administration, it came through the Trump Administration, and our rule is that they have to actually look at the corruption before giving taxpayer dollars.
Doug Collins: (02:04:47)
The president was doing that and now it has been blown up because we’ve now found in this hearing today, facts really don’t matter if we’re trying to fit it into a law or fitting into a breaking of rule that we want to impeach on. And as I’ve said, the reason we’re doing this is the train is on the track. This is a clock calendar impeachment, not a fact impeachment. I yield back.
Jerry Nadler: (02:05:09)
Gentleman yields back. I now recognize Ms. Lofgren for five minutes.
Rep. Lofgren: (02:05:14)
Thank you, Mr. Chairman. This is as has been mentioned, only the third time in modern history that the committee has assumed the grave responsibility of considering impeachment. And oddly enough, I’ve been present at all three. I was a staff of Congressman Don Edwards during the Nixon impeachment, present on the committee during the Clinton impeachment and here we are today. At its core, the impeachment power really is about the preservation of our democratic systems. And the question we must answer is whether the activity of the president threatens our constitution and our democracy.
Rep. Lofgren: (02:05:54)
And it’s about whether he’s above the law and whether he’s honoring his oath of office. Now, the House Judiciary Committee staff, and it wasn’t me, it was other staff, wrote an excellent report in 1974 and this is what they said, “Impeachment of a president is a grave step for the nation. It is to be predicated only upon conduct seriously incompatible with either the constitutional form and principle of our government or the proper performance of constitutional duties of the presidential office.” And I’d ask unanimous consent to enter the House Judiciary Committee report on constitutional …
Jerry Nadler: (02:06:33)
Rep. Lofgren: (02:06:34)
… Grounds into the record. Thank you, Mr. Chairman. You know like President Nixon, the allegations against President Trump involve serious election related misconduct. Nixon’s associates burglarized the DNC Headquarters to give him a leg up in his election. Nixon tried to cover up the crime by obstructing federal and congressional investigations. He also abused his powers to target his political rivals and here we’re confronted with evidence suggesting that President Trump tried to leverage appropriated military assistance to resist Russia by Ukraine to convince a foreign ally to announce an investigation of his political rival.
Rep. Lofgren: (02:07:20)
Professor Karlan, I’d like you to tell me your view on how President Trump’s conduct meeting his request of the foreign ally to announce an investigation of his adversary. How does that compare to what President Nixon did?
Pamela Karlan: (02:07:37)
Not favorably because as I suggested in my opening testimony, it was a kind of doubling down because President Nixon abused domestic law enforcement to go after his political opponents and what President Trump has done based on the evidence that we’ve seen so far is he’s asked a foreign country to do that, which means it’s not. It’s sort of like a daily double, if you will, of problems.
Rep. Lofgren: (02:08:07)
Professor Gerhardt, do you have an additional comment on that?
Michael G.: (02:08:10)
I certainly would agree with professor Karlan. Yes. I think the difficulty here is we need to remember that impeachable offenses don’t have to be criminal offenses, as you well know. And so what we’re talking about is an abuse of power. We’re talking about an abuse of power that only the president can commit and there was a systematic concerted effort by the president to remove people that would somehow obstruct or block his ability to put that pressure on Ukraine to get an announcement of an investigation. That seems to be what he cared about.
Reena Ninan: (02:08:52)
We want to pause briefly to welcome our viewers from our CBS stations. Hi, everyone. I’m Reena Ninan in New York continuing our CBSN Special Report. We take you back now to the hearing.
Rep. Lofgren: (02:09:04)
As we saw in the Myers case and I was a member of the committee when we tried to get her testimony as well as the fast and furious case, which also was wrongfully withheld from the Congress, litigation to enforce congressional subpoenas can extend well beyond the terms of the presidency itself. That happened in both of those cases. Professor Feldman, is it, as Professor Turley seemed to suggest, an abuse of our power not to go to the courts before using our sole power of impeachment in your judgment?
Noah Feldman: (02:09:37)
Certainly not. Under The Constitution, the House is entitled to impeach. That’s its power. It doesn’t have to ask permission from anybody and it doesn’t have to go through any judicial process involving the judicial branch of government. That is your decision based on your judgment.
Rep. Lofgren: (02:09:52)
Thank you. I’d just liked it to note that this is not a proceeding that I looked forward to. It’s not an occasion for joy. It’s one of solemn obligation. I hope and believe that every member of this committee is listening, keeping an open mind and hoping that we honor our obligations carefully and honestly, and with that I yield back, Mr. Chairman
Jerry Nadler: (02:10:15)
Gentle lady yields back. Gentle lady yields back. We are expecting votes on the House floor shortly, so we will recess until immediately after the conclusion of those votes. I ask everyone in the room to please remain seated and quiet while the witnesses exit the room. I want to remind members of the audience that you may not be guaranteed your seat if you leave the hearing room at this time.
Questioning Part 2
Jerry Nadler: (00:10)
[crosstalk 00:00:10] Recognize…
Jerry Nadler: (00:14)
Oh. Let me repeat that. The committee will come to order. When we broke for recess, we were under the five minute rule and I recognize Mr. Sensenbrenner For five minutes to question the witnesses.
Thank you very much, Mr. Chairman. I’m a veteran of impeachments. I’ve been named by the house is an impeachment manager in four impeachments, Clinton and three judges; that’s more than anybody else in history. And one of the things in every impeachment, whether it’s the ones that I was involved in or others that have come before the committee where I was not a manager, is a debate on what is a high crime and misdemeanor and how serious does that have to be in order for it to rise to a level of an impeachable offense. About 50 years ago, then Republican leader, Gerald Ford, made a comment that saying a high crime and misdemeanor is anything in majority of the house of representatives deems it to be on any given day. I don’t agree with that.
That sits either a very low bar or non-existent bar, and it certainly would make the presidents serve at the pleasure of the house, which was not what the framers intended… When they rejected the British form of parliamentary democracy, where the prime minister and the government could be overthrown by a mere vote of no confidence in the House of Commons. So, I am looking at what we’re facing here. This whole inquiry was started out by a comment that president Trump made the president Zelensky, in the July 25th call of, “Do me a favor.” There are some who have said it’s a quid pro quo, there are some who have implied that it’s a quid pro quo that both Trump and Zelensky have said it wasn’t, and Zelensky has said, “There was no pressure on me,” and, “The aid came through within six weeks after the phone call in question was made.”
Now you can contrast that to where there was no impeachment inquiry to vice president Biden. When he was giving a speech and said, “You know, I held up $1 billion worth of aid unless the prosecutor was fired within six hours. And son of a bleep, that’s what happened.” Now, it seems to me that if you’re for a quid pro quo and looking for something that was really over the top, it was not saying, “Do me a favor.” It was saying, “Son of a bleep, that’s what happened in six hours.” Now, the Republicans who are in charge of Congress at the time Biden made that comment, we did not tie the country up for three months, and going on four now, wrapping everybody in this town around the axle rod. We continued attempting to do the public’s business. That’s not what’s happening here.
And I think the American public are getting a little bit sick and tired of impeachment, impeachment, impeachment. When they know that less than a year from now, they will be able to determine whether Donald Trump stays in office or somebody else will be elected. And I take this responsibility extremely seriously. It is an awesome and very grave responsibility, and it is not one that should be done lightly, it is not one that should be done quickly, and it is not one without examining all of the evidence, which is what was done in the Nixon impeachment and what was done largely by Kenneth Starr in the Clinton impeachment. Now I’d like to ask you, professor Turley, because your mind is the only one of the four, who up there, that doesn’t seem to have it made up before you walk into the door. Isn’t there a difference between saying, “Do me a favor,” and, “Son of a bleep, that’s what happened in six hours time.”
Jonathan Turley: (04:50)
Grammatically, yes. Constitutionally, it really depends on the context. I think your point is a good one in a sense that we have to determine from the transcript and hopefully from other witnesses whether this statement was part of an actual quid pro quo. I guess the threshold question is, if the president said, “I’d like you to do these investigations,” and by the way, I don’t group them together. In my testimony, I distinguish between the requests for investigations into 2016, from the investigation of the Bidens. But it is an issue of order. The magnitude of order, constitutionally, if you ask, I’d like you see you do this as opposed to “I have a quid pro quo. You either do this or you don’t get military aid.”
Jerry Nadler: (05:39)
Time of the gentlemen is expired. Gentlelady from Texas, Ms. Jackson Lee.
Jackson Lee: (05:45)
Thank you Mr. Chairman for yielding. Professor Gerhardt said, “If what we are talking about today is not impeachable, then nothing is impeachable.” I’m reminded of my time on the house judiciary committee during the 1990s impeachment and as well a number of federal judges. I was guided then, not only by the facts, but by the constitution and the duty to serve this nation. I believe as we greet you today, that we are charged with a sober and somber responsibility. So professor Karlan, I’d like you to look at the intelligence volume where hundreds of documents are behind that in the Mueller report. Professor Karlan, and you studied the record. Do you think it is, “Wafer thin”? And can you remark on the strength of the record before us?
Pamela Karlan: (06:49)
Thank you. So, obviously it’s not wafer thin. And the strength of the record is not just in the July 25th call. I think the way you need to ask about this is, how does it fit into the pattern of behavior by the president? Because what you’re really doing is you’re drawing inferences here. This is about circumstantial evidence, as well as direct evidence. That is you’re trying to infer, did the president ask for a political favor? And I think this record supports the inference that he did.
Jackson Lee: (07:24)
What comparisons, professor Karlan, can we make between kings that the framers were afraid of and the president’s conduct today?
Pamela Karlan: (07:33)
So kings could do no wrong, because the king’s word was law. And contrary to what president Trump has said, article two does not give him the power to do anything he wants, and I’ll just give you one example that shows you the difference between him and a king, which is the constitution says there can be no titles of nobility. So while the president can name his son Baron, he can’t make him a baron.
Jackson Lee: (07:58)
Thank you. The founding father, George Mason, asked, “Shall any man be above justice?” And Alexander Hamilton wrote that, “High crimes and misdemeanors mean the abuse of violation of some public trust.” As we move quickly, professor Feldman, you have previously testified that the president has abused his power. Is that correct?
Noah Feldman: (08:19)
Jackson Lee: (08:19)
What do you think is the most compelling evidence in this impeachment inquiry that would lead you to that?
Noah Feldman: (08:25)
The phone call itself, of July 25th, is extraordinarily clear to my mind, in that we hear the president asking for a favor that’s clearly of personal benefit rather than acting on behalf of the interests of nation. And then further from that, further down the road, we have more evidence, which tends to give the context and to support the explanation for what happened.
Jackson Lee: (08:49)
Professor Karlan, how does such abuse affects our democratic systems?
Pamela Karlan: (08:54)
Having foreign interference in our election means that we are less free. It is less we the people who are determining who’s the next winner than it is a foreign government.
Jackson Lee: (09:04)
I think it is fair to say that the president’s actions are unprecedented. But what also strikes me is how many republicans and democrats believe that his conduct was wrong. Let’s listen to him-
Speaker 4: (09:16)
It is improper for the presi…
Jackson Lee: (09:17)
Speaker 4: (09:19)
Of the United States.
Jackson Lee: (09:20)
Listen to the colonel.
Speaker 4: (09:22)
It is improper for the president of the United States to demand a foreign government investigate a US citizen and a political opponent.
Jackson Lee: (09:30)
Professor Feldman, in light of the fact that the president asked for an investigation, and then only when he was caught, release the military aid, is there still a need for impeachment?
Noah Feldman: (09:44)
Yes ma’am. Impeachment is complete when the president abuses his office and he abuses his office by attempting to abuse his office. There’s no distinction there between trying to do it and succeeding in doing it, and that’s especially true if you only stop because you got caught.
Jackson Lee: (10:01)
Over 70% of the American people believe, as I said, what the president did was wrong. We have a solemn responsibility to address that. And as well, our fidelity to our oath and our duty, reminded of the men and women who serve in the United States military, and I’m reminded of my three uncles who served in World War II. I can’t imagine them being on the battlefield, needing arms and food, and the general says, “Do me a favor.” We know that general would not say, “Do me a favor.” And so in this instance, the American people deserve unfettered leadership and it is our duty to fairly assess the facts and the constitution. I yield back my time.
Jerry Nadler: (10:49)
Gentlelady yields back. Mr. Chabot is recognized.
Steve Chabot: (10:51)
Thank you, Mr. Chairman. It’s pretty clear to me that no matter what questions we ask these four witnesses here today, and no matter what their answers are, that most, if not all, of the democrats on this committee are going to vote to impeach president Trump. That’s what their hardcore Trump hating based wants and they’ve wanted that since the president was elected three years ago. In fact, when democrats took over the house, one of the first things that they did was introduce articles of impeachment against president Trump, and that was way before president Trump and the Ukrainian president Zelensky ever had their famous phone call, whether it was perfect or not.
Jackson Lee: (11:31)
Excuse me. I’m sorry.
Steve Chabot: (11:31)
Now today, we’re undertaking a largely academic exercise instead of hearing from fact witnesses like Adam Schiff or Hunter Biden, but we’re not being permitted to call those witnesses. It would seem that since Schiff, for example, misled the American people on multiple occasions, common sense and basic fairness would call for Schiff to be questioned about those things, but we can’t. Mr. Chairman, back in 1998, when another president, Bill Clinton, was being considered for impeachment, you said, and I quote, “We must not overturn an election and impeach a president without an overwhelming consensus of the American people and the representatives in Congress.” You also said, “There must never be a narrowly voted impeachment or an impeachment substantially supported by one of the major political parties and originally opposed by the other.” You said, “Such an impeachment would lack legitimacy, would produce divisiveness and bitterness in our politics for years to come, and we’ll call into question the very legitimacy of our political institutions.” That’s what you said back then, Mr. Chairman.
Steve Chabot: (12:40)
Well, what you said should never happen, that we should never do, is exactly what you’re doing now. Moving forward without a consensus and impeachment by one major party that’s opposed by the other, and it’s almost certain that it’s going to result in the very divisiveness and bitterness that you so accurately warned us about back then. Mr. Chairman, a couple more quotes from a very wise Jerry Nadler , from about two decades ago. “The last thing you want, it’s almost illegitimate, is to have a party line impeachment. You shouldn’t impeach the president unless it’s a broad consensus of the American people.” Those are wise words, Mr. Chairman, but you’re not following them today. And finally, again your words back then, “The issue in a potential impeachment is whether to overturn the results of a national election, the free expression of the popular will of the American people. That is an enormous responsibility and an extraordinary power. It is not one we should exercise lightly. It is certainly not one which should be exercised in a manner which either is or would be perceived by the American people to be unfair or partisan.”
Steve Chabot: (13:53)
Again, Mr. Chairman, those things that you warned against then are exactly what you and your democratic colleagues are doing now. You’re about to move forward with a totally party line impeachment that is clearly not a broad consensus of the American people. You’re overturning the result of a national election, and there’s no doubt that it will be perceived by at least half of the American people as an unfair and partisan effort. You seem bound and determined to move forward with this impeachment and the American people deserve better. I get it. Democrats on this committee don’t like this president. They don’t like his policies, they don’t like him as a person, they hate his tweets. They don’t like the fact that the Mueller investigation was a flop. So now you’re going to impeach him.
Steve Chabot: (14:40)
Well, I got news for you. You may be able to twist enough arms in the house to impeach the president, but that effort’s going to die in the Senate. The president’s going to serve out his term in office, and in all likelihood, be reelected to a second term, probably with the help of this very impeachment charade that we’re going through now. And while you’re wasting so much of Congress’s time and the American people’s money on this impeachment, there are so many other important things that are going undone. Within this committee’s own jurisdiction, we should be addressing the opioid epidemic, we could be working together to find a solution to our immigration and asylum challenges on our Southern border, we could be protecting Americans from having their intellectual property and jobs stolen by Chinese companies, and we could be enhancing election security just to name a few things. And Congress as a whole could be working on rebuilding our crumbling infrastructure, providing additional tax relief to the nation’s middle class families and providing additional security to our people here at home and abroad. Instead, here we are spinning our wheels once again on impeachment. What a waste. The American people deserve so much better. I yield back.
Jackson Lee: (15:53)
Gentleman yields back. Mr. Cohen.
Mr. Cohen: (15:56)
Thank you, Mr. Chair. I take no pleasure in the fact that we’re here today. As a patriot who loves America, it pains me that the circumstances force us to undertake this grave and solemn obligation. Nonetheless, based simply on the publicly available evidence, it appears that president Trump pressured a foreign government to interfere in our elections by investigating his perceived chief political opponent. Today we’re here to uphold our oath to defend the Constitution of the United States by furthering our understanding whether the president’s conduct is impeachable. It is entirely appropriate that we’re examining our nation’s history as relates to presidential impeachment. The framers of the constitution legitimately feared for an interference in our nation sovereignty and they wanted to ensure that there would be a check and balance on the executive. We sit here with a duty to the founders to fulfill their wisdom and being a check on the executive. We, the people’s house, are that check. Under our constitution, the house can impeach a president for treason, bribery or other high crimes and misdemeanors. Professor Feldman, you’ve discussed high crimes and misdemeanors, and the fact that the high refers to both crimes and misdemeanors. Can you just give us a little bit of a summary of what high crimes and misdemeanors are and how they’re distinct from what professor Turley said they were?
Noah Feldman: (17:10)
Yes, sir. High crimes and misdemeanors are actions of the president in office, where he uses his office to advance his personal interests potentially for personal gain, potentially to corrupt the electoral process and potentially, as well, against the national security interest of the United States. I would add, sir, that the word high modifies both crimes and misdemeanors. The framers world knew of both high crimes and high misdemeanors, and I believe that the definition that was posted earlier of misdemeanor was not the definition of a high misdemeanor, which was a specific term understood by the framers and discussed and the constitutional convention, but only of the word misdemeanor. And that’s an easy mistake to make, but the truth is that high misdemeanors were their own category of abuses of office, and those are the things that are impeachable.
Mr. Cohen: (18:00)
Thank you, professor. Professors Feldman, Karlan and Gerhardt, you’ve all have testified the president’s conduct here implicates three categories of high crimes and misdemeanors: abusive power, betrayal of the national interest and corruption of elections. Is that right, professor Karlan?
Pamela Karlan: (18:15)
Yes, it is.
Mr. Cohen: (18:16)
And professor Feldman and professor Gerhardt, do you agree?
Prof. Gerhardt: (18:19)
Noah Feldman: (18:20)
Mr. Cohen: (18:21)
Professor Karlan, you stated that the essence of an impeachable offense is the president’s decision to sacrifice the national interest for his own private ends. Professor Feldman and Gerhardt, do you all also agree with that?
Noah Feldman: (18:33)
Prof. Gerhardt: (18:34)
Mr. Cohen: (18:35)
Based on the evidence you’ve seen professors Feldman, Karlan and Gerhardt, has president Trump sacrificed the country’s interest in favor of his own? Professor Karlan?
Pamela Karlan: (18:45)
Yes, he has.
Mr. Cohen: (18:46)
And is there a particular piece of evidence that most illuminates that?
Pamela Karlan: (18:50)
I think what illuminates that most for me is the statement by ambassador Sondland that he wanted simply the announcement of an investigation, and several other people said exactly the same thing. There’s testimony by ambassador Volker to this extent as well. That what he wanted was simply public information to damage Joe Biden. He didn’t care whether at the end of the day Joe Biden was found guilty or exonerated.
Mr. Cohen: (19:15)
And professor Feldman, do you agree or do you have a different or the same illuminating fact?
Noah Feldman: (19:20)
My emphasis would be on the fact that the president held up aid to an ally that’s fighting a war in direct contravention of the unanimous recommendation of the national security community. That to me seems to have placed his own interests in personal advantage ahead of the interests of the nation.
Mr. Cohen: (19:37)
And a bill passed by Congress, bipartisan.
Noah Feldman: (19:39)
Mr. Cohen: (19:39)
Prof. Gerhardt: (19:41)
I agree with what my colleagues have said. I would add that I’m very concerned about the president’s obstruction of Congress, obstruction of this inquiry, refusal to comply with a number of subpoenas, ordering many high level officials in the government not to comply with subpoenas and asking and ordering the entire executive branch not to cooperate with Congress. It’s useful to remember the constitution says the house has the sole power to impeach. Constitution only uses the word sole twice. Once with reference to the house in this area, once with reference to the Senate with respect to impeachment trials. Sole means sole, means only, and this is your decision.
Mr. Cohen: (20:18)
Let me get professor Turley into this. Professor Turley, you’re a self-described, self-anointed defender of article one Congress guy, but you justify a position that says legally issued subpoenas by Congress enforcing its powers don’t have to be complied with. It seems in this circumstance, you’re an article two executive guy. And your talking about the Johnson impeachment is not very useful. That was maladministration. This is a criminal act. Thank you professors for helping us understand high crimes and misdemeanors. We, the people’s representatives and the people’s house are heirs and custodians, the founders of [inaudible 00:20:54] country where the people are sovereign. We have a higher responsibility and charge with a sole power to uphold our constitution and defend our democracy and we shall do that.
Jerry Nadler: (21:03)
Gentleman’s, time has expired. Mr Goldman.
Louie Gohmert: (21:07)
Thank you. I’m afraid this hearing is indicative of the indecency to which we’d come. When instead of the committee of jurisdiction bringing in witnesses to get to the bottom of what happened, and not even having time to review the report, which, as professor Turley indicated, is wafer thin when compared to the 36 boxes of documents that were delivered to the last impeachment group. But… Then to start this hearing with the chairman of the committee saying that the facts are undisputed. The only thing that is disputed more than the facts in this case is the statement that the facts are undisputed. They are absolutely disputed and the evidence is a bunch of hearsay on hearsay, that if anybody here had tried cases before of enough magnitude, you would know you can’t rely on hearsay on hearsay, but we have experts who know better than the accumulated experience of the ages.
Louie Gohmert: (22:24)
So, here we are, and I would submit we need some factual witnesses. We do not need to receive a report that we don’t have a chance to read before this hearing. We need a chance to bring in actual fact witnesses; and there are a couple I can name that are critical to us getting to the bottom. They worked for the national security council, Abigail Grace, Sean Misko, that were involved in the US Ukraine affairs, and they worked with vice president Biden on different matters involving the Ukraine. They worked with Brennan Masters. They have absolutely critical information about certain Ukrainians involvement in our US election. Their relationships with the witnesses, who went before the intel committee and others involved in these allegations, make them the most critical witnesses in this entire investigation. And their records, including their emails or text messages, their flash drives or computers, have information that will bring this effort to remove the president to a screeching halt.
Louie Gohmert: (23:33)
So we have an article here from October 11, Kerry Picket points out that house intelligence committee chairman Adam Schiff recruited two former national security council aides who worked alongside the CIA whistleblower at the NSC during the Obama and Trump administrations. Abigail Grace, who worked at the NSC until 2018, was hired in February, while Sean Misko, NSCA until 2017, joined Schiff’s committee in August, the same month the whistleblower submitted his complaint. And goes on to point out that Grace was hired to help shifts committee investigate the Trump White House. That month, Trump accused Schiff of stealing people who were working at the White House, and chairman Schiff said, “If the president’s worried about our hiring any former administration people, maybe you should work on being a better employer.” No, he should have fired everybody just like bill Clinton did all the US attorneys on the same day. That would have saved us a lot of what’s going on here.
Louie Gohmert: (24:41)
So, anyway, we need those two witnesses; they’re critical. And then we also need someone who was a CIA detail aid of the Ukraine, NSC desk. State department [inaudible 00:24:55] shows that he was at an Italy state luncheon, there’s Italy ramifications in the last elections. He speaks Arabic and Russian, reported directly to Charles Kupchan, “who’s a friend of the Clinton’s aid,” said Blumenthal. He did policy work for Ukraine corruption. Close continuous contact with the FBI state Ukrainian officials, had a collateral duty to support vice president Biden; and Biden was Obama’s point man on Ukraine. He was associated with DNC operative Allie Chalupa, who we also need. Met with her November 9th, 2015 with Ukrainian delegation. And there’s all kinds of reasons we need these three witnesses and I would ask pursuant to section four, house resolution 660, ask our ranking member to submit the requests for these three witnesses, because we’re not having a factual hearing until we have these people that are at the bottom of every fact of this investigation.
Jerry Nadler: (26:09)
Louie Gohmert: (26:10)
I yield back. [crosstalk 00:26:11] Thanks for bringing down the gavel hard. That was nice.
Jerry Nadler: (26:13)
Gentleman yields back. Mr. Johnson.
Mr. Johnson: (26:16)
Thank you, Mr. Chairman. The president has regularly and recently solicited foreign interference in our upcoming elections. Professor Turley warns that this is an impulse buy moment and suggest that the house should pause. Professor Karlan, do you agree with professor Turley?
Pamela Karlan: (26:37)
No. If you conclude that, as I think the evidence to this point shows, that the president is foreign involvement in our election, you need to act now to prevent foreign interference in the next election like the one we had in the past.
Mr. Johnson: (26:52)
Thank you. Professor Karlan, In 30 seconds or less, tell us why you believe the president’s misconduct was an abuse of power so egregious that it merits the drastic remedy of impeachment?
Pamela Karlan: (27:04)
because he invited the Russians who are a longtime adversaries into the process. The last time around, because he has invited the Ukrainians into the process, and because he suggested he would like the Chinese to come into the process as well.
Mr. Johnson: (27:18)
Thank you very much. One of the framers of our constitution, Edmund Randolph, who, at one time, was mayor of Williamsburg, Virginia. Warren does that quote, “The executive will have great opportunities of abusing his power.” Professor Feldman, people like mayor Randolph rebelled because of the tyranny of a king. Why were the framers so careful to avoid the potential for a president to become so tyrannical and abusive? And what did they do to protect against it?
Noah Feldman: (27:55)
The framers believed very strongly that the people were the king, the people were sovereign, and that meant that the president worked for somebody. He worked for the people. They knew that a president who couldn’t be checked, who could not be supervised by his own justice department and who could not be supervised by Congress and could not be impeached, would effectively be above the law and then would use his power to get himself reelected. And that’s why they created the impeachment remedy.
Mr. Johnson: (28:20)
Thank you professor Feldman. I now want to discuss how the framers concerns about abuse of power relate to president Trump’s misconduct. On July 25th, president Trump said to president Zelensky quote, “I would like you to do us a favor, though.” Professor Feldman, when president Trump made use of the words ‘favor, though’, do you believe that the president was benignly asking for favor? And how is the answer to that question relevant to whether the president abused his power?
Noah Feldman: (28:53)
It’s relevant, sir, because there’s nothing wrong with someone asking for a favor in the interest of the United States of America. The problem is for the president to use his office to solicit or demand a favor for his personal benefit. And the evidence strongly suggests that given the power of the president and given the incentives that the president created for Ukraine to comply with his request, that the president was seeking to serve his own personal benefit and his own personal interest. That’s the definition of corruption under the constitution.
Mr. Johnson: (29:23)
Other witnesses have also testified that it was their impression that when president Trump said, ” I would like you to do us a favor, though,” that he was actually making a demand and not a request. Professor Feldman, how does Lieutenant Colonel Vindmans testimony that the president’s statement was a demand because of the power disparity between the two countries relate back to our framers concerns about the president’s abuse of power?
Noah Feldman: (29:52)
Lieutenant Colonel Vindmans observation states very clearly that you have to understand that the President of United States has so much more power than the President of Ukraine. That when the president uses the word ‘favor’, the reality is that he’s applying tremendous pressure, the pressure of the power of the United States, and that relates to the constitutional abuse of office. If someone other than the President of the United States asked the President of Ukraine to do a favor, the President of Ukraine could say no. When the President of the United States uses the office of the presidency to ask for a favor, there’s simply no way for the President of Ukraine to refuse.
Mr. Johnson: (30:24)
Thank you. We’ve also heard testimony that the president withheld a White House meeting and military aid in order to further pressure Ukraine to announce investigations of vice president Biden and the 2016 election. Professor Karlan, is that why your testimony concluded that the president abused his power?
Pamela Karlan: (30:46)
I thought the president abused his power by asking for an investment criminal investigation of a United States citizen for political ends, regardless of everything else. That’s just not icing on the cake, it’s what you would call an aggravating circumstance that there was here.
Mr. Johnson: (31:03)
All right, thank you. A president holding an American ally over a barrel to expect to extract personal favors is deeply troubling. This is not an impulse buy moment, it’s a break the glass moment, and impeachment is the only appropriate remedy. And with that I will yield back.
Jerry Nadler: (31:21)
Gentleman yields back. Mr. Jordan.
Jim Jordan: (31:23)
Thank you, Mr. Chairman. Before speaker Pelosi announced the impeachment inquiry 10 weeks ago on September 24th, before the call between president Trump and president Zelensky on July 25th, before the Mueller hearing in front of this committee on July 24th. Before all that, 16 of them had already voted to move forward on impeachment. 16 democrats on the judiciary committee had already voted to move forward on impeachment, yet today we’re talking about whether the positions they’ve already taken are constitutional? It seems a little backward to me. I mean, we can’t get agreement. I mean, we got four democrats, or four people who voted for Clinton and they can’t agree. Yet today we’re talking about the constitution.
Jim Jordan: (32:06)
Now, professor Turley, you’ve been great today, but I think you were wrong on one thing. You said, “This is a fast impeachment.” I would argue it’s not a fast impeachment, it’s a predetermined impeachment. Predetermined impeachment done in the most unfair partisan fashion we have ever seen. No subpoena power for republicans, depositions done in secret in the bunker, in the basement of the Capitol. 17 people come in for those depositions. No one can be in there except a handful of folks that Adam Schiff allowed. In those depositions, chairman Schiff prevented witnesses from answering republican questions. Every democrat question got answered. Not every Republican question. Democrats denied republicans the witnesses we wanted in the open hearings that took place three weeks ago. And of course, democrats promised us the whistleblower would testify and then changed their mind, and they changed their mind why? Because the whole world discovered that Adam Schiffs staff had talked to the-
Jim Jordan: (33:03)
Because the whole world discovered that Adam Schiff’s staff had talked to the whistle blower, coordinated with the whistleblower. Whistleblower with no firsthand knowledge, biased against the president, who worked with Joe Biden, whose lawyer, in January of ’17, said, “The impeachment process starts then.”
Jim Jordan: (33:18)
That’s the unfair process we’ve been through, and the reason it’s been unfair… Let me just cut to the chase. The reason it’s been unfair is because the facts aren’t on their side. The facts are on the president’s side. Four key facts will not change, have not changed, will never change. We have the transcript. There was no quid pro quo in the transcript. The two guys on the call, President Trump and President Zelensky both said no pressure, no pushing, no quid pro quo. The Ukrainians’ third didn’t know that the aid was held up at the time of the phone call, and fourth, and most important, Ukrainians never started, never promised to start and never announced an investigation in the time that the aid was paused. Never once. But, you know what did happen in those 55 days that the aid was paused? There were five key meetings between President Zelensky and senior officials in our government. Five key meetings. We had the call on July 25th. The very next day, July 26, we had Ambassador Volker, Taylor, and Sondland meet with President Zelensky in Kiev. He then had Ambassador Bolton, end of August, meet with President Zelensky.
Jim Jordan: (34:24)
We then had the vice president meet with President Zelensky on September 1st, and we had two senators, Republican and, more importantly, Democrat Senator Murphy with Republican Senator Johnson meet with President Zelensky on September 5th. None of those five meetings, none of those five meetings was aid ever discussed in exchange for an announcement of an investigation into anybody, not one of them, and you would think the last two, after the Ukrainians did know the aid was being held, you would think you would come up then, particularly the one where you got Senator Murphy, the Democrat they’re talking about it.
Jim Jordan: (34:58)
Never came up. The facts are on the President’s side, but we got an unfair process, because they don’t have the facts. We got an unfair process, most importantly… And this gets to something else you said, Mr. Turley. This is scary. How mad the…
Jim Jordan: (35:15)
That was so well said. This is scary. The Democrats have never accepted the will of the American people. To Mr. Turley’s point, 17 days ago, 17 days ago, the Speaker of the United States House of Representatives called the president of the United States an impostor, the guy 63 million Americans voted for, who won an electoral college landslide, the Speaker of the United States House of Representatives called that individual an imposter. That is not healthy for our country. This is not healthy. The facts are the facts. They are on the president’s side. That’s what we need to focus on, not some constitutional hearing at the end of the process when you guys have already determined where you’re going to go. With that, I yield back.
Jerry Nadler: (36:03)
Gentleman yields back. Mr. Deutch.
Rep. Ted Deutch: (36:08)
Thank you, Mr. Chairman. Mr. Chairman, this month we commemorate the 75th anniversary of the Battle of the Bulge. My late father, Bernard Deutch, then Staff Sergeant Bernard Deutch, received a purple heart fighting in the frigid Ardennes. He gave blood, among tens of thousands of Americans who suffered… who were casualties. They served under officers and a commander in chief who were not fighting a war for their own personal benefit. They put country first.
Rep. Ted Deutch: (36:37)
They made the same solemn promise that members of Congress and the president of the United States make, to always put national interest above their own personal interest. The evidence shows the president broke that promise. Constitution gives the president enormous power, but it also imposes a remedy, impeachment, when those powers are abused. In July, President Trump said, and I quote, “I have an article two, where I have the right to do whatever I want as president,” close quote.
Rep. Ted Deutch: (37:11)
Professor Feldman, the president has broad powers under the constitution, including in foreign policy, isn’t that right?
Noah Feldman: (37:17)
Rep. Ted Deutch: (37:18)
And do those powers mean that the president can do, as he said, whatever he wants, as president? Can he abused the powers that the constitution gives him?
Noah Feldman: (37:28)
He may not. If the president uses the powers that he’s given for personal gain, or to corrupt an election, or against the national security interests of the United States, he may be impeached for a high crime and misdemeanor.
Rep. Ted Deutch: (37:38)
Is using his power to pressure Ukraine to interfere in us elections and abuse of that power?
Noah Feldman: (37:43)
Rep. Ted Deutch: (37:44)
Professor Gerhardt, how would the framers of the Constitution have viewed a president asking for election interference from a foreign leader?
Prof. Gerhardt: (37:54)
It’s always… It’s practically impossible to know what exactly what the framers would think, but it’s not hard to imagine how the Constitution deals with it. That’s their legacy to us. And under the Constitution, it’s plainly an abuse of power. It’s a rather horrifying abuse of power.
Rep. Ted Deutch: (38:09)
Professor Karlan, we’ve heard witnesses, over the past several weeks, testify about their concerns. When the president used his foreign policy powers for political gain, Lieutenant Colonel Vindman was shocked. He couldn’t believe what he heard on the phone call. NSC Advisor Hill realized that a political errand was diverging from efforts to protect our national security policy, and Ambassador Taylor thought it was crazy to withhold security assistance for help on a political campaign. Professor Karlan, these concerns aren’t mere differences over policy, are they?
Pamela Karlan: (38:43)
No, they go to the foundation, the very foundation of our democracy.
Rep. Ted Deutch: (38:47)
And offering to exchange a White House meeting and hundreds of millions of dollars in security assistance for help with his reelection, that can’t be part of our nation’s foreign policy, can it?
Pamela Karlan: (39:02)
No. It’s the essence of doing something for personal reasons rather than for political reasons, and if I could just say one thing about this very briefly, which is, maybe when he was first running for president, he had never been anything other than a reality TV show. That was his public life. Maybe then he could think Russia, if you’re listening, is an okay thing to do, but by the time he asked the Ukraine, Ukraine, if you’re listening, could you help me out with my reelection, he has to have known that that was not something consistent with his oath of office.
Rep. Ted Deutch: (39:34)
Mr. Chairman, our founders granted the president of the United States enormous powers, but at the same time, what we’ve been reminded of today, they worry that these powers could be abused by a corrupt president. The evidence of abuse of power in this inquiry proved that our founders were right to be worried.
Rep. Ted Deutch: (39:55)
Yes, yes, the president has the power to direct America’s foreign policy, but no, he cannot use that power to cheat in our elections. Remember, and I ask all of my colleagues to remember, the Constitution grants the president his power through the American people. The president’s source of power is a democratic election. It is the American people, the voters who trusted him to look out for them. We trusted him to look out for the country, but instead, President Trump looked out for himself and helping himself get reelected. He abused the power that we trusted him with for personal and political gain.
Rep. Ted Deutch: (40:49)
The founders worried about just this type of abuse of power, and they provided one way, one way for Congress to respond, and that’s the power of impeachment. I yield back.
Jerry Nadler: (41:03)
Gentleman yields back. Mr. Buck.
Rep. Ken Buck: (41:05)
Thank you Mr. Chairman. Professor Turley. I want to direct these first few questions to you. The other three witnesses have identified this amorphous standard for impeaching a president. They’ve said that if a president abuses his power for personal or political gain, it’s impeachable conduct. You agree with me?
Jonathan Turley: (41:27)
Not the way it’s been stated. In fact, there’s so many different standards-
Rep. Ken Buck: (41:30)
I got a long ways to go here.
Jonathan Turley: (41:32)
Well, there’s been so many different standards. One of them was attempting to abuse office.
Rep. Ken Buck: (41:36)
Jonathan Turley: (41:37)
I’m not even sure how to recognize that, let alone define it.
Rep. Ken Buck: (41:40)
So, let me go with a few examples and see if you agree with me.
Rep. Ken Buck: (41:44)
Lyndon Johnson directed the Central Intelligence Agency to place a spy in Barry Goldwater’s campaign. That spy got advanced copies of speeches and other strategy, deliver that to the Johnson campaign. Would that be impeachable conduct according to the other panelists?
Jonathan Turley: (42:03)
It sweeps pretty broadly, so I assume so.
Rep. Ken Buck: (42:05)
How about when President Johnson put a wire tap on Goldwater’s campaign plane? Would that be for political benefit?
Jonathan Turley: (42:15)
Well, I can’t exclude anything under that definition.
Rep. Ken Buck: (42:17)
Okay, well I’m going to go with a few other presidents. We’ll see where we go. Congressman Deutch just informed us that FDR put country first. Now, Franklin Delano Roosevelt, when he was president, directed the IRS to conduct audits of his political enemies, namely Huey Long, William Randolph Hearst, Hamilton Fish, Father Coughlin. Would that be an abuse of power for political benefit according to the other panelists? Would that be impeachable conduct?
Jonathan Turley: (42:46)
I think it all would be subsumed into it.
Rep. Ken Buck: (42:48)
How about when president Kennedy directed his brother, Robert Kennedy, to deport one of his mistresses as an East German spy? Would that qualify as impeachable conduct?
Jonathan Turley: (43:00)
Once again, I can’t exclude it.
Rep. Ken Buck: (43:02)
And how about when he directed the FBI to use wire taps on congressional staffers who opposed him politically? Would that be impeachable conduct?
Jonathan Turley: (43:11)
It would seem to be falling within it.
Rep. Ken Buck: (43:14)
And, let’s go to Barack Obama. When Barack Obama directed… Or made a finding that the Senate was in recess and appointed people to the National Labor Relations Board and lost nine to zero, Ruth Bader Ginsburg voted against the president on this issue, would that be an abuse of power?
Jonathan Turley: (43:38)
I’m afraid you have to direct it to others, but I don’t see any exclusions under their definition.
Rep. Ken Buck: (43:42)
Okay, and how about when the president directed his national security advisor and the Secretary of State to lie to the American people about whether the ambassador to Libya was murdered as a result of a video or was murdered as a result of a terrorist act, would that be an abusive power for political benefit 17 days before the next election?
Jonathan Turley: (44:02)
Well, not according to my definition, but the others will have to respond to their own.
Rep. Ken Buck: (44:07)
Well, you’ve heard their definition. You can apply those facts to their definition.
Jonathan Turley: (44:11)
I have a hard time excluding anything out of-
Rep. Ken Buck: (44:13)
How about when Abraham Lincoln arrested legislators in Maryland so that they wouldn’t convene to secede from the Union, and Virginia already had seceded, so it would have placed Washington, DC, the nation’s Capitol in the middle of the rebellion. Would that have been an abuse of power for political benefit?
Jonathan Turley: (44:33)
Oh, it could be under that definition.
Rep. Ken Buck: (44:36)
And you mentioned George Washington a little while ago as perhaps having met the standard of impeachment for your other panelists. In fact, let me ask you something, Professor Turley, can you name a single president in the history of the United States, save President Harrison, who died 32 days after his inauguration that would not have met the standard of impeachment for our friends here?
Jonathan Turley: (45:00)
I would hope to God James Madison would escape. Otherwise, a lifetime of academic work would be shredded. But, once again, I can’t exclude many of these acts.
Rep. Ken Buck: (45:13)
Isn’t what you and I and many others are afraid of is that the standard that your friends, to the right of you, and not politically, but to the right of you sitting in there, that your friends have decided that the bar is so low that when we have a Democrat president in office and a Republican house and a Republican Senate, we’re going to be going through this whole scenario again in a way that really puts the country at risk.
Jonathan Turley: (45:42)
Well when you’re graphic says in your ABC’s that your B is betrayal of national interest, I would simply ask, do you really want that to be your standard?
Rep. Ken Buck: (45:53)
Now isn’t the difference, Professor Turley, that some people live in an ivory tower and some people live in a swamp, and those of us that are in the swamp are doing our very best for the American people, but it’s not pretty.
Jonathan Turley: (46:05)
Actually, I live in an ivory tower in a swamp, because I’m at GW, but… And it’s not so bad.
Rep. Ken Buck: (46:11)
I yield back.
Jerry Nadler: (46:12)
Gentleman yields back. Ms. Bass.
Rep. Karen Bass: (46:15)
Thank you very much, and I want to thank the witnesses, and I don’t believe the people’s House is a swamp. President Nixon was impeached for abuse of power because his conduct was, quote, “undertaken for his personal political advantage and not in furtherance of any valid national policy objective.”
Rep. Karen Bass: (46:32)
President Gerhardt. Why was it significant that President Nixon acted for his personal political advantage and not in furtherance of any valid national policy objective?
Prof. Gerhardt: (46:43)
It’s primarily significant because, in acting for his own personal benefit and not for the benefit of the country, he has crossed a line. The line here is very clear, and it becomes abuse of power when somebody is using the special authorities of their office for their own personal benefit and not the benefit of the country.
Rep. Karen Bass: (47:04)
So, can the same be said of President Trump?
Prof. Gerhardt: (47:07)
That’s… It could be, yes. Yes.
Rep. Karen Bass: (47:09)
Well, thank you. You know, I’m struck by the parallels, because one of the things that Nixon did was he launched tax investigations of his political opponents. Here, the evidence shows Trump tried to launch a criminal investigation of his political opponent by a foreign government. We have heard evidence suggesting that President Trump did this for his own personal gain and not for any national policy interest. Although president Trump claims that he withheld the aid because of concerns about corruption, I do believe that we have example of the evidence of the truth.
Speaker 5: (47:43)
Ambassador Sondland stated that the president only cares about big stuff. I noted there was big stuff going on in Ukraine, like a war with Russia, and ambassador Sondland replied that he meant big stuff that benefits the president, like the Biden investigation that Mr. Giuliani was pushing.
Rep. Karen Bass: (48:03)
Professor Feldman, what would the framers have thought of a president who only cares about the, quote, big stuff that benefits him.
Noah Feldman: (48:13)
The framers were extremely worried about a president who served only his own interests or the interests of foreign powers. That was their most serious concern when they designed the remedy of impeachment.
Rep. Karen Bass: (48:24)
So, the evidence also suggests that President Trump didn’t even care if the investigation actually happened. What he really cared about was the public announcement of the investigation. So, Professor Karlan, how do we analyze these facts in the context of abuse of power?
Pamela Karlan: (48:42)
Well, I think that, to have a president ask for the investigation of his political opponents is an archetype of the abusive power, and Mr. Buck mentioned past examples of this, and to say that those weren’t impeachable, I think, is a big mistake. If a president wire taps his opponents, that’s a federal crime now. I don’t know whether before the wiretap act of 1968 it was, but if a president wiretapped his opponents today, that would be impeachable conduct.
Rep. Karen Bass: (49:13)
I also serve on the foreign affairs committee, and I understand how significant it is to foreign leaders to meet with our presidents. To attend a meeting in the Oval Office is very significant.
Rep. Karen Bass: (49:25)
President Zelensky is a newly elected head of state in a fledgling democracy. His country is at war with his neighbor. Russia invaded and is occupying his country’s territory. He needed the military resources to defend his country. He needed the diplomatic recognition of the American president, and he was prepared to do whatever the president demanded.
Rep. Karen Bass: (49:50)
Many years ago, I worked in the nation’s largest trauma unit as a PA, a physician assistant. I saw people at their worst in severe pain after accidents or acts of violence. Patients I took care of were desperate and afraid and had to wait five to eight hours to be seen. Can you imagine, for one minute, if I had told my patients, “Look, I can move you up in line and take care of your pain, but I do need a favor from you, though.”
Rep. Karen Bass: (50:16)
My patients were in pain, and they were desperate, and they would have agreed to do anything I asked. This would have been such an abuse of my position because of the power dynamic. I had the power to relieve my patients from experiencing pain. It’s fundamentally wrong and, in many cases, illegal for us to use power to take advantage of those in crisis, especially a president, especially when lives are at stake. I yield back.
Jerry Nadler: (50:45)
The gentlelady yields back. Mr. Radcliffe.
John Ratcliffe: (50:48)
Thanks to Chairman. Professor Turley, I’d like to start where you started, because you said something that, I think, bears repeating.
John Ratcliffe: (50:56)
You said, “I’m not a supporter of President Trump. I voted against him in 2016, and I have previously voted for Presidents Clinton and Obama.”
John Ratcliffe: (51:07)
But despite your political preferences and persuasions, you reached this conclusion: “The current legal case for impeachment is not just woefully inadequate, but in some respects dangerous as the basis for impeachment of an American president.”
John Ratcliffe: (51:24)
So let me start by commending you for being the kind of example of what, hopefully, everyone on this committee will do as we approach the tasks that we have of determining whether or not there were any impeachable offenses here. One of the problems that you’ve articulated as leading you to the conclusion of calling this the, should it proceed, the shortest impeachment proceeding with the thinnest evidentiary record and the narrowest grounds ever attempted to impeach a president is the fact that there has been this ever-changing, constantly evolving, moving target of accusations, if you will.
John Ratcliffe: (52:04)
The July 25th phone call started out as an alleged quid pro quo and briefly became an extortion scheme, a bribery scheme. I think it’s back to the quid pro quo. Now, besides pointing out that both Speaker Pelosi and Chairman Schiff waited until almost every witness had been deposed before they even started to use the term bribery… I think you’ve clearly articulated why you think the definitions that they have used publicly are flawed, if not unconstitutional, both in the 18th century or in the 21st century. But would you agree with me that bribery, under any valid definition, requires that a specific quid pro quo be proven?
Jonathan Turley: (52:51)
Yes. More importantly, the Supreme Court is focused on that issue as well as what is the definition of a quid pro quo.
John Ratcliffe: (52:58)
So, if military aid or security assistance is part of that quid pro quo, where in the July 25th transcript does President Trump ever suggest that he intends to withhold military aid for any reason?
Jonathan Turley: (53:14)
He doesn’t. And that’s the reason we keep on hearing the word circumstantial and inferential, and that’s what is so concerning is that those would be appropriate terms… It’s not that you can’t have a circumstantial case. Those would be appropriate terms if these were unknowable facts. But the problem is that you have so many witnesses that have not been subpoenaed. So many witnesses that we’ve not heard from.
John Ratcliffe: (53:36)
So, if it’s not in the transcript, then it’s got to come from witness testimony, and I assume you’ve reviewed all the witness testimony. So, you know that no witness has testified that they either heard President Trump or were told by President Trump to withhold military aid for any reason, correct?
Jonathan Turley: (53:52)
John Ratcliffe: (53:54)
So, let me turn to the issue of obstruction of justice quickly. I think you assumed, as I did, that when Democrats had been talking about obstruction, it was specifically related to the Ukraine issue, and I know you’ve talked about that a lot today. You’ve clearly stated that you think that President Trump had no corrupt intent on page 39 of your report. You said something else, I think, that bears repeating today. You were highlighting the fact that the Democrats appear to be taking the position that if a president seeks judicial review over executive branch testimony or documents subpoenaed by Congress, that rather than letting the courts be the arbiter, Congress can simply impeach the president for obstruction based on that. Did I hear you say that if we were to proceed on that basis that that would be an abuse of power?
Jonathan Turley: (54:48)
I did, and let me be very clear about this. I don’t disagree with my colleagues that nothing in the constitution says you have to go to a court or wait for a court. That’s not what I’m saying. What I’m saying is that if you want a well based, legitimate impeachment case, to set this abbreviated schedule, demand documents, and then impeach because they haven’t been turned over, so when they go to a court when the president goes to a court, I think that is an abuse of power. That’s not what happened in Nixon. And, in fact, the ultimate decision in Nixon was that there are legitimate executive privilege claims that could be raised, and some of them deal with the type of aides involved in this case, like a national security advisor, like a White House counsel. And so, the concern here is not that you can’t ever impeach a president unless you go to court. It’s just that you shouldn’t when you have time to do it.
John Ratcliffe: (55:43)
So, if I were to summarize your testimony, no bribery, no extortion, no obstruction of justice, no abuse of power. Is that fair?
Jonathan Turley: (55:50)
Not on this record.
John Ratcliffe: (55:52)
Gentleman’s time has expired. Mr. Richmond.
Cedric Richmond: (55:57)
Thank you Mr. Chairman, and let me just pick up where we left off, and I’m going to start, Mr. Turley, with your words, and it’s from October 23rd, your opinion piece in The Hill.
Cedric Richmond: (56:07)
You said that, “As I have said before, there’s no question that the use of public office for personal gain is an impeachable offense, including the withholding of military aid in exchange for the investigation of a political opponent. You just have to prove it happened. If you can establish intent to use public office for personal gain, you have a viable impeachable offense.”
Cedric Richmond: (56:35)
We’ve heard today that a president abuses his power when he uses his official power for his own personal interest rather than the interest of our country. I’d like to spend more time on that because I’m really struck by one of the things that was at stake here. $400 million of taxpayer dollars.
Cedric Richmond: (56:55)
President Nixon leveraged the powers of his office to investigate political rivals, but here, the evidence shows that President Trump also leveraged taxpayer dollars to get Ukraine to announce sham investigations of President Trump’s political rivals. That taxpayer money was meant to help Ukraine defend itself and, in turn, defend United States interest from Russian aggression.
Cedric Richmond: (57:22)
The money had been appropriated by Congress and certified by the Department of Defense. Multiple witnesses confirmed that there was unanimous support for the military aid to Ukraine. Can we listen to that please?
Speaker 6: (57:36)
From what you witnessed, did anybody in the national security community support withholding the assistance?
Speaker 7: (57:45)
Speaker 8: (57:46)
I never heard anyone advocate for holding the aid.
Speaker 9: (57:50)
And the entire inter-agency supported the continuation of the security assistance, isn’t that right?
Speaker 10: (57:55)
That is correct.
Speaker 11: (57:56)
I, and others, sat in astonishment. Ukrainians were fighting Russians and counted on not only the training and weapons, but also the assurance of US support.
Cedric Richmond: (58:09)
Professor Feldman, you’ve stated that the president’s demand to the president of Ukraine constituted an abuse of power. How does the president’s decision to withhold military aid affect your analysis?
Noah Feldman: (58:22)
It means that it wasn’t just an abuse of power because the president was serving his own personal interests, but also an abuse of power in so far as the president was putting American national security interests behind his own personal interest. So it brought together two important aspects of the abuse of power, self gain and undercutting our national security interests.
Cedric Richmond: (58:43)
The evidence points to President Trump use the military for his personal benefit, not for the benefit of any official US policy. Professor Karlan, how would the framers have interpreted that?
Pamela Karlan: (58:57)
Well, I can’t speak for the framers themselves, obviously. My view is that they would say that the president’s authority to use foreign aid… And they probably couldn’t have imagined we even were giving foreign aid, because we were tiny poor country then. So, it’s a little hard to translate that, but what they would have said is, a president who doesn’t think first about the security of the United States is not doing what his oath requires him to do, which was faithfully execute the laws here, a law appropriating money, and defend the Constitution of the United States.
Cedric Richmond: (59:34)
Thank you, and let’s go back to a segment of Mr. Turley’s quote, that if you can establish intent to use public office for personal, you have a viable impeachable offense. Mr. Feldman, do we meet that criteria here?
Noah Feldman: (59:51)
In my view, the evidence does meet that criteria, and that’s the judgment that you should be making.
John Ratcliffe: (59:56)
Pamela Karlan: (59:58)
Yes, and one question I would just have for the minority members of the committee is if you were convinced that the president held up the aid because he thought it would help his reelection, would you vote to impeach him? Because I think that’s really the question that everyone on this committee should be asking and if they conclude yes, then they should vote to impeach.
Cedric Richmond: (01:00:17)
Prof. Gerhardt: (01:00:18)
Yes, I agree. And one thing I would add is that much talk has been made here about the term bribery and court decisions with respect to bribery. It’s your job. It’s the House’s job to define bribery, not the courts. You follow your judgment on that.
Cedric Richmond: (01:00:38)
I want to thank the witnesses, all of the witnesses for coming and testifying today. This is not an easy decision. It’s not a comfortable decision, but it’s one that’s necessary. We all take an oath to protect the Constitution. Our military men and women go and put their lives on the line for the Constitution and we have an obligation to follow the Constitution, whether it’s convenient or easy. Thank you, and I yield back the balance.
Jerry Nadler: (01:01:02)
Gentleman yields back. Ms. Roby?
Rep Martha Roby: (01:01:04)
Very quickly, Professor Turley, would you like to respond?
Jonathan Turley: (01:01:09)
Yes, I would. First of all, what was said in that column is exactly what I’ve said in my testimony. The problem is not that abuse of power can never be an impeachable offense. You just have to prove it, and you haven’t. It’s not enough to say, I infer this was the purpose. I infer that this is what was intended when you’re not actually subpoenaing people with direct knowledge, and instead you’re saying we must vote in this rocket docket of an impeachment.
Rep Martha Roby: (01:01:41)
So this leads to my statement that I’d like to make. Of course, the United States House of Representatives has initiated impeachment inquiries against the president of the United States only three times in our nation’s history, prior to this one.
Rep Martha Roby: (01:01:56)
Those impeachment inquiries were done in this committee, the Judiciary Committee, which has jurisdiction over impeachment matters. Here, in 2019, under this inquiry, fact witnesses that have been called were in front of the intelligence committee. We have been given no indication that this committee will conduct substantive hearings with fact witnesses. As a member serving on the judiciary committee, I can say that the process in which we are participating is insufficient, unprecedented and grossly inadequate.
Rep Martha Roby: (01:02:33)
Sitting before us is a panel of witnesses containing four distinguished law professors from some of our country’s finest educational institutions. I do not doubt that each of you are extremely well versed in the subject of constitutional law, and yes, there is precedent for similar panels in the aforementioned history, but only after specific charges had been made known and the underlying facts presented in full due to an exhaustive investigation.
Rep Martha Roby: (01:03:03)
However, I don’t understand why we are holding this hearing at this time with these witnesses. My colleagues on the other side of the aisle have admitted they don’t know what articles of impeachment they will consider. How does anyone expect a panel of law professors to weigh in on the legal grounds for impeachment charges prior to even knowing what the charges brought by this committee are going to be?
Rep Martha Roby: (01:03:26)
Some of my Democrat colleagues have stated over and over that impeachment should be a nonpartisan process, and I agree. One of my colleagues in the Democratic Party stated, and I quote, “Impeachment is so divisive to the country that unless there is something so compelling and overwhelming and bi-partisan, I don’t think we should go down that path, because it divides the country.”
Rep Martha Roby: (01:03:48)
My democratic colleagues have stated numerous times that they are on a truth seeking and fact finding mission. Another one of my democratic colleagues said, and I quote, “We have a responsibility to consider the facts that emerged squarely and with the best interest of our country, not our party and our hearts.”
Rep Martha Roby: (01:04:07)
These types of historic proceedings, regardless of political beliefs, ought to be about fact finding and truth seeking, but that is not what this has turned out to be. Again, no disrespect to these witnesses, but for all I know this is the only hearing that we will have, and none of them are fact witnesses.
Rep Martha Roby: (01:04:28)
My colleagues are saying one thing and doing something completely different. No member of Congress can look their constituents in the eye and say this is a comprehensive, fact finding, truth seeking mission. Ranking member Collins and members of the minority on this committee have written six letters over the past month to Chairman Nadler asking for procedural fairness for all the underlying evidence to be transmitted to the Judiciary Committee to expand the number of witnesses, and have an even more bipartisan panel here today, and for clarity on today’s impeachment proceedings, since we haven’t received evidence to review.
Rep Martha Roby: (01:05:09)
The minority has yet to receive a response to these letters. Right here today is another very clear example for all Americans to truly understand the ongoing lack of transparency and openness with these proceedings. The witness list for the for this hearing was not released until late Monday afternoon. Opening statements from the witnesses today were not distributed until late last night, and the Intelligence Committee’s finalized report has yet to be presented to this committee.
Rep Martha Roby: (01:05:41)
You hear from those in the majority that process is a Republican talking point, when in reality it is an American talking point. Process is essential to the institution. A thoughtful, meaningful process of this magnitude with such great implications should be demanded by the American people. With that, I yield back.
Jonathan Turley: (01:06:02)
Gentlelady yields back.
Rep Martha Roby: (01:06:03)
… the American people. With that, I yield back.
Jerry Nadler: (01:06:03)
Gentle lady yields back, Mr. Jeffries.
Hakeen Jeffries: (01:06:06)
I did not serve in the military, but my 81-year-old father did. He was an Air Force veteran stationed in Germany during the height of the Cold War in the late 1950s. He was a teenager from inner-city Newark, a stranger in a foreign land serving on the Western side of the Berlin Wall. My dad proudly wore the uniform because he swore an oath to the constitution and believed in American democracy. I believe in American democracy. We remain the last best hope on earth. It is in that spirit that we proceed today. Professor Karlan, in America, we believe in free and fair elections. Is that correct?
Pamela Karlan: (01:06:56)
Yes, it is.
Hakeen Jeffries: (01:06:57)
But authoritarian regimes do not. Is that right?
Pamela Karlan: (01:07:00)
Hakeen Jeffries: (01:07:02)
Thomas Jefferson once wrote, or John Adams once wrote to Thomas Jefferson on December 6, 1787, and stated, “You are apprehensive of foreign interference, intrigue, influence, so am I, but as often as elections happen, the danger of foreign influence recurs.” Professor Karlan, how important was the concept of free and fair elections to the framers of the constitution?
Pamela Karlan: (01:07:32)
Honestly, it was less important to them than it’s become in our constitution since then. And if you’ll remember, one of the things that turned me into lawyer was seeing Barbara Jordan, who was the first female lawyer I’d ever seen in practice, say, on the committee that we, the people didn’t include people like her in 1789 but through a process of amendment, we have done that. And so elections are more important to us today as a constitutional matter than they were even to the framers.
Hakeen Jeffries: (01:08:00)
And is it fair to say that an election cannot be reasonably characterized as free and fair if it’s manipulated by foreign interference?
Pamela Karlan: (01:08:08)
Hakeen Jeffries: (01:08:09)
And the framers of the constitution were generally and deeply concerned with the threat of foreign interference in the domestic affairs of the United States. True?
Pamela Karlan: (01:08:16)
Hakeen Jeffries: (01:08:17)
And why were they so deeply concerned?
Pamela Karlan: (01:08:20)
Because foreign nations don’t have our interests at heart. They have their interests at heart.
Hakeen Jeffries: (01:08:26)
And would the framers find it acceptable for an American president to pressure a foreign government to help him win an election?
Pamela Karlan: (01:08:35)
I think they’d find it unacceptable for a president to ask a foreign government to help him whether they put pressure on him or not.
Hakeen Jeffries: (01:08:44)
Direct evidence shows that on July 25th phone call, the president ordered five words, “Do us a favor, though.” He pressured the Ukrainian government to target an American citizen for political gain and the same time simultaneously withheld $391 million in military aid. Now, Ambassador Bill Taylor, West Point graduate, Vietnam War hero, Republican-appointed diplomat discussed this issue of military aid. Here is a clip of his testimony.
Bill Taylor: (01:09:18)
Again, our holding up of security systems that would go to a country that is fighting aggression from Russia for no good policy reason, no good substantive reason, no good for national security reason is wrong.
Hakeen Jeffries: (01:09:39)
To the extent the military aid was being withheld as part of an effort to solicit foreign interference in the 2020 election, is that behavior impeachable?
Pamela Karlan: (01:09:50)
Yes, it is. And if I could go back to one of the words you read, when the president said, “Do us a favor,” he was using the royal we there. It wasn’t a favor for the United States. He should have said, “Do me a favor,” because only kings say us when they mean me.
Hakeen Jeffries: (01:10:04)
And is it correct that an abusive power that strikes at the heart of our democracy falls squarely within the definition of a high crime and misdemeanor?
Pamela Karlan: (01:10:15)
Yes, it does.
Hakeen Jeffries: (01:10:16)
Some of my colleagues have suggested that impeachment would overturn the will of the people. The American people expressed their will in November of 2018. The will of the people elected a new majority. The will of the people elected a house that would not function as a wholly-owned subsidiary of this administration. The will of the people elected a house that understands we are separate and coequal branch of government.
Hakeen Jeffries: (01:10:44)
The will of the people elected a house that understands we have a constitution and responsibility to serve as a check and balance on an out of control executive branch. The president abused his power and must be held accountable. No one is above the law. America must remain the last best hope on earth. I yield back.
Jerry Nadler: (01:11:09)
Gentleman yields back. Mr. Gaetz.
Matt Gaetz: (01:11:12)
The will the American people also elected Donald Trump to be the president of the United States in the 2016 election and there’s one party that can’t seem to get over it. Now, we understand the fact that in 2018 you took the house of representatives and we haven’t spent our time during your tenure in power trying to remove the speaker of the house, trying to de-legitimize your ability to govern. Frankly, we’d love to govern with you. We’d love to pass USMCA. We’d love to put out a helping hand to our seniors and lower prescription drug prices. It’s the will of the people you ignore when you continue down this terrible road of impeachment.
Matt Gaetz: (01:11:44)
Professor Gaetz, you gave money to Barack Obama, right?
Prof. Gerhardt: (01:11:48)
My family did, yes.
Matt Gaetz: (01:11:49)
Prof. Gerhardt: (01:11:52)
That sounds about right, yes.
Matt Gaetz: (01:11:54)
Mr. Chairman, I have a series of unanimous consent requests relating Professor Feldman’s work. The first, Noah Feldman, Trump’s wiretap tweets raised the risk of impeachment-
Jerry Nadler: (01:12:05)
Gentlemen will suspend. Has the [crosstalk 01:12:08]. We’ll take that time off. Has the gentleman submitted … Have we seen that material?
Matt Gaetz: (01:12:17)
We can provide it to you as it’s typical first terms.
Jerry Nadler: (01:12:19)
And we’ll consider the unanimous consent requests later after we’ve reviewed the material.
Matt Gaetz: (01:12:24)
Very well. Thank you.
Jerry Nadler: (01:12:24)
Thank you, gentleman. You may continue.
Matt Gaetz: (01:12:26)
Thank you, Mr. Chairman. Mr. Feldman wrote articles entitled, “Trump’s Wiretap Tweets Raise Risk of Impeachment.” He then wrote, “Mar-a-Lago ad belongs in impeachment file.” And then Mr. Jake Flanagan wrote, “A Harvard law professor thinks Trump could be impeached over fake news accusations.” My question, Professor Feldman, is since you seem to believe that the basis for impeachment is even broader than the basis that my Democrat colleagues have laid forward, do you believe your outside of the political mainstream on the question of impeachment?
Noah Feldman: (01:12:59)
I believe that impeachment is warranted whenever the president abuses his power for personal benefit or to corrupt the democratic process.
Matt Gaetz: (01:13:07)
Did you write an article entitled it’s hard to take impeachment seriously now?
Noah Feldman: (01:13:11)
Yes, I did write that article-
Matt Gaetz: (01:13:12)
And in that article, did you write-
Noah Feldman: (01:13:12)
… back in May-
Matt Gaetz: (01:13:13)
Hold on I’m limited on time.
Noah Feldman: (01:13:14)
… 2019, I wrote that article.
Matt Gaetz: (01:13:15)
So did you write-
Noah Feldman: (01:13:15)
Would let me answer the question, sir?
Matt Gaetz: (01:13:16)
… “Since 2018 mid-term election house, Democrats have made it painfully clear that discussing impeachment is primarily or even exclusively a tool to weaken President Trump’s chances in 2020.” Did you write those words?
Noah Feldman: (01:13:29)
Until this call in July 25th, I was an impeachment skeptic. The call changed my mind, sir, and for a good reason.
Matt Gaetz: (01:13:36)
Thank you. I appreciate your testimony. Professor Karlan, you gave 1000 bucks to Elizabeth Warren, right?
Pamela Karlan: (01:13:43)
I believe so.
Matt Gaetz: (01:13:44)
You gave 1200 bucks to Barack Obama?
Pamela Karlan: (01:13:47)
I have no reason to question that.
Matt Gaetz: (01:13:49)
And you gave 2000 bucks to Hillary Clinton?
Pamela Karlan: (01:13:52)
Matt Gaetz: (01:13:52)
Why so much more for Hillary than the other two?
Pamela Karlan: (01:13:55)
Because I’ve been giving a lot of money to charity recently because of all of the poor people in the United States.
Matt Gaetz: (01:14:00)
Those aren’t the only folks that you’ve been giving to. Have you ever been on a podcast called Versus Trump?
Pamela Karlan: (01:14:06)
I think I was on a live panel that the people who ran the podcast called Versus Trump.
Matt Gaetz: (01:14:15)
On that, do you remember saying the following, “Liberals tend to cluster more, conservatives, especially very conservative people tend to spread out more perhaps because they don’t even want to be around themselves?” Did you say that?
Pamela Karlan: (01:14:29)
Yes, I did.
Matt Gaetz: (01:14:31)
Do you understand how that reflects contempt on people who are conservative?
Pamela Karlan: (01:14:36)
No. What I was talking about there was the natural tendency, if you put the quote in context, the natural tendency of a compactness requirement to favor a party whose voters are more spread out. And I do not have contempt for conservatives.
Matt Gaetz: (01:14:53)
Professor, hold on. Again, I’m very limited on time, Professor.
Pamela Karlan: (01:14:57)
And I do not have contempt for [crosstalk 01:14:57].
Matt Gaetz: (01:14:57)
And so I just have to say when you talk about how liberals want to be around each other and cluster, and conservatives don’t want to be around each other and so they have to spread out, it makes people … You may not see this from the ivory towers of your law school, but it makes actual people in this country feel like-
Pamela Karlan: (01:15:12)
When the president calls-
Matt Gaetz: (01:15:13)
Excuse me, you don’t get to interrupt me on this time. Now, let me also suggest that when you invoke the president’s son’s name here, when you try to make a little joke out of referencing Barron Trump, that does not lend credibility to your argument. It makes you look mean. It makes you look like you’re attacking someone’s family, the minor child of the president of the United States. So let’s see if we can get into the facts to all of the witnesses.
Matt Gaetz: (01:15:35)
If you have personal knowledge of a single material fact in the Schiff report, please raise your hand. And let the record reflect no personal knowledge of a single fact. And you know what? That continues on the tradition that we saw from Adam Schiff, where Ambassador Taylor could not identify an impeachable offense. Mr. Ken never met with the president. Fiona Hill never heard the president reference anything regarding military aid.
Matt Gaetz: (01:16:02)
Mr. Hale was unaware of any nefarious activity with aid. Colonel Vindman even rejected the new Democrat talking point that bribery was invoked here. Ambassador Volker denied that there was a quid pro quo and Mr. Morrison said there was nothing wrong on the call. The only direct evidence came from Gordon Sondland who spoke to the president of the United States and the president said, “I want nothing. No quid pro quo.” And you know what? If wiretapping the political opponents is an impeachable offense-
Pamela Karlan: (01:16:30)
Matt Gaetz: (01:16:30)
… I look forward to reading that inspector general’s report-
Pamela Karlan: (01:16:31)
Gentleman’s time has expired.
Matt Gaetz: (01:16:34)
… because maybe it’s a different president we should be impeaching.
Pamela Karlan: (01:16:35)
Gentleman’s time has expired. Mr. Cicilline.
Mr. Cicilline: (01:16:36)
Thank you, Mr. Chairman. Professor Feldman, let me begin with by stating the obvious. It is not hearsay when the president tells the president of Ukraine to investigate his political adversary, is it?
Noah Feldman: (01:16:48)
It is not.
Mr. Cicilline: (01:16:49)
It is not hearsay when the president then confesses on national television to doing that, is it?
Noah Feldman: (01:16:54)
It is not.
Mr. Cicilline: (01:16:54)
It is not hearsay when administration officials testify that they hear the president say he only cares about the investigations of his political opponent, is it?
Noah Feldman: (01:17:04)
No, that is not hearsay.
Mr. Cicilline: (01:17:05)
And there’s lots of other direct evidence in this 300-page report from the intelligence committee. So let’s dispense with that claim by my Republican colleagues. Professor Turley notwithstanding what he said today, wrote an August 1st, 2014, in a piece called Five myths about impeachment. One of the myths he was rejecting was that impeachment required a criminal offense and he wrote, “An offense does not have to be indictable, serious misconduct or violation of public trust is enough.” Was Professor Turley right when he wrote that back in 2014?
Noah Feldman: (01:17:38)
Yes, I agree with that.
Mr. Cicilline: (01:17:40)
Now, next I’m going to move to Professor Karlan. At the constitutional convention, Elbridge Gerry said, “Foreign powers will intermeddle in our affairs and spear no expense to influence them.” And the response, James Madison said that impeachment was needed because otherwise a president “might betray his trust to a foreign power.” Professor Karlan, can you elaborate on why the framers were so concerned about foreign interference, how they accounted for these concerns and how that relates to the facts before this committee?
Pamela Karlan: (01:18:12)
The reason that the framers were concerned about foreign interference, I think, is slightly different than the reason we are. They were concerned about it because we were such a weak country in 1789. We were small. We were poor. We didn’t have an established Navy. We didn’t have an established army. Today the concern is a little different, which is that it will interfere with us making the decisions that are best for us as Americans.
Mr. Cicilline: (01:18:37)
Thank you, Professor. There are three known instances of the president publicly asking a foreign country to interfere in our elections. First, in 2016, the president publicly hoped that Russia would hack into the email of a political opponent, which they subsequently did.
Mr. Cicilline: (01:18:51)
Second, based on the presence own summary of his call with Ukrainian president Zelensky, we know he asked Ukraine to announce an investigation of his chief political rival and used aid appropriated by Congress as leverage in his efforts to achieve this. And third, the president then publicly urge China to begin its own investigation.
Mr. Cicilline: (01:19:08)
Professor Feldman, how would it impact our democracy if it became standard practice for the president of the United States to ask a foreign government to interfere in our elections?
Noah Feldman: (01:19:18)
It would be a disaster for the functioning of our democracy if our presidents regularly, as this president has done, asked foreign governments to interfere in our electoral process.
Mr. Cicilline: (01:19:28)
I’d like to end with a powerful warning from George Washington who told Americans in his farewell address, “To be constantly awake since history and experience prove that foreign influence is one of the most painful foes of Republican government.” The conduct at issue here is egregious and warrants a commensurate response. The president has openly and repeatedly solicited for an interference in our elections, of that, there is no doubt.
Mr. Cicilline: (01:19:55)
This matters because inviting foreign meddling into our elections robs the American people have their sacred right to elect their own political leaders. Americans all across this country wait in long lines to exercise their right to vote and to choose their own leaders. This right does not belong to foreign governments. We fought and won a revolution over this. Free and fair elections are what separate us from authoritarians all over the world.
Mr. Cicilline: (01:20:20)
As public servants and members of the house, we would be negligent in our duties under the constitution if we let this blatant abuse of power go unchecked. We’ve heard a lot about hating this president, it’s not about hating this president. It’s about our love of country. It’s about honoring the oath that we took to protect and defend the constitution of this great country.
Mr. Cicilline: (01:20:40)
And so my final question is to Professor Feldman and to Professor Karlan, in the face of this evidence, what are the consequences if this committee and this Congress refuses to muster the courage to respond to this gross abuse of power that undermine the national security of the United States, that undermine the integrity of our elections, and that undermined the confidence that we have to have in the president to not abuse the power of his office?
Noah Feldman: (01:21:06)
If this committee in this house fail to act, then you’re sending a message to this president and to future presidents that it’s no longer a problem if they abuse their power. It’s no longer a problem if they invite other countries to interfere in our elections and it’s no longer a problem if they put the interests of other countries ahead of ours.
Mr. Cicilline: (01:21:22)
Pamela Karlan: (01:21:24)
I agree with Professor Feldman and I should say just one thing and I apologize for getting a little overheated a moment ago, but I have a constitutional right under the first amendment to give money to candidates. At the same time, we have a constitutional duty to keep foreigners from spending money in our elections, and those two things are two sides of the same coin.
Mr. Cicilline: (01:21:45)
Thank you. And with that, I yield back, Mr. Chairman.
Jerry Nadler: (01:21:47)
Gentleman yields back. Mr. Johnson.
Mr. Johnson: (01:21:50)
Thank you. I was struck this morning by the same thing as all my friends and colleagues on this side of the room. Chairman Nadler actually began this morning with the outrageous statement that the facts before us are undisputed. Of course, everyone here knows that that’s simply not true. Every person here, every person watching at home knows full well that virtually everything here is disputed from the fraudulent process and the broken procedure to the Democrats unfounded claims, and the full facts are obviously not before us today.
Mr. Johnson: (01:22:21)
We’ve been allowed no fact witnesses here at all. For the first time ever, this committee, which is the one in Congress that has the actual jurisdiction over impeachment is being given no access to the underlying evidence that Adam Schiff and his political accomplices claim supports this whole charade. This is just a shocking denial of due process.
Mr. Johnson: (01:22:41)
And I want to say to our witnesses, I’m also a constitutional law attorney and under normal circumstances, I really would greatly enjoy an academic discussion with your debate about the contours of Article 2 Section 4, but that would be an utter waste of our time today because as it has been highlighted so many times this morning, this whole production is a sham and a reckless path to a predetermined political outcome.
Mr. Johnson: (01:23:04)
And I want you to know it’s an outcome that was predetermined by our Democrat colleagues a long time ago. The truth is, house Democrats have been working to impeach President Donald J. Trump since the day he took his oath of office. Over the past three years, they’ve introduced four different resolutions seeking to impeach the president. Almost exactly two years ago, as one of the graphics up here shows, December 6 2017, 58 house Democrats voted to begin impeachment proceedings.
Mr. Johnson: (01:23:31)
Of course, that was almost 20 months before the famous July 25th phone call with Ukraine’s president, Zelensky. And this other graphic up here is smaller, but it’s interesting too. I think it’s important to reiterate for everybody watching at home that of our 24 Democrat colleagues and friends on the other side of the room today, 17 out of 24 have already voted for impeachment. Let’s be honest. Let’s not pretend that anybody cares anything about what’s being said here today or the actual evidence or the facts.
Mr. Johnson: (01:24:01)
As Congresswoman Lofgren said, “We come with open minds.” That’s not happening here so much for an impartial jury. Several times this year, leading Democrats have frankly admitted in various interviews and correspondence that they really believe this entire strategy is necessary because, why? Because they want to stop the president’s reelection. Even Speaker Pelosi said famously last month, “It is dangerous to allow the American people to evaluate his performance at the ballot box.”
Mr. Johnson: (01:24:29)
Speaker Pelosi has it exactly backwards. What is dangerous here is the precedent, all this is setting for the future of our Republic. I love what Professor Turley testified to this morning. He said, “This is simply not how the impeachment of a president is done.” His rhetorical question to all of our colleagues on the other side is still echoing throughout this chamber. He asked you to ask yourselves, where will this and where will you stand next time when this same kind of sham impeachment process is initiated against a president from your party? The real shame here today is that everything in Washington has become bitterly partisan and this ugly chapter is not going to help the that. It’s going to make things really that much worse. President Turley said earlier that we are now living in the era that was feared by our founders. What Hamilton referred to as a period of agitated passions. I think that says it so well. This has indeed become an age of rage.
Mr. Johnson: (01:25:22)
President Washington warned in his farewell address in 1796 that, “Extreme partisanship would lead us to the ruins of public liberty.” Those were his words. This hyper-partisan impeachment is probably one of the most divisive and destructive things that we could possibly do to our American family. Let me tell you what I heard from my constituents in multiple town halls and meetings back in my district just two days ago, the people of this country are sick of this.
Mr. Johnson: (01:25:48)
They’re sick of the politics of personal destruction. They’re sick of this toxic atmosphere that is being created here, and they’re deeply concerned about where all this will lead us in the years ahead. Rightfully so. You know what the greatest threat is? The thing that ought to keep every single one of us up at night is the rapidly eroding trust of the American people in their institutions.
Mr. Johnson: (01:26:09)
One of the critical presuppositions and foundations of a self-governing people in a constitutional republic is that they will maintain a basic level of trust in their institutions, in the rule of law, in the system of justice, in the body of elected representatives, their citizen legislators in the Congress. The greatest danger of this fraudulent impeachment production is not what happens this afternoon or by Christmas or in the election next fall.
Mr. Johnson: (01:26:33)
The greatest danger is what this will do in the days of head to our 243-year experiment in self-governance. [inaudible 01:26:40] foolish new precedent. This Pandora’s box will have, upon our beleaguered nation six or seven years from now, a decade from now in the ruins of public liberty that are being created by this terribly shortsighted exercise today. God help us. I yield back.
Jerry Nadler: (01:26:54)
Gentleman yields back. Mr. Swalwell
Mr. Swalwell: (01:26:57)
Professor Turley is a former prosecutor. I recognize the defense attorney trying to represent their client, especially one who has very little to work with, in the way of facts. And today, you’re representing the Republicans in their defense of the president. Professor, you said-
Prof. Turley: (01:27:13)
That’s not my intention, sir.
Mr. Swalwell: (01:27:15)
You’ve said that, “This case represents a dramatic turning point in federal impeachment precedent, the impact of which will shape and determine future cases. The house for the first time in the modern era asks the Senate to remove someone for conduct for which he was never charged criminally and the impropriety of which has never been tested in a court of law.” But that’s actually not a direct quote from what you said today. It sounds a lot like what you’ve argued today, but that’s a quote from what you argued as a defense lawyer in a 2010 Senate impeachment trial. Professor, did you represent Federal Judge Thomas Porteous?
Prof. Turley: (01:27:51)
I did indeed.
Mr. Swalwell: (01:27:52)
And Judge Porteous was tried on four articles of impeachment ranging from engaging in a pattern of conduct that is incompatible with the trust and confidence placed in him as a federal judge to engaging in a longstanding pattern of corrupt conduct that demonstrates his unfitness to serve as the United States district court judge. On each count, Judge Porteous was convicted by at least 68 and up to 96 bi-partisan senators.
Mr. Swalwell: (01:28:19)
Thankfully, that senate did not buy your argument that a federal official should not be removed if he’s not charged criminally. And respectfully, Professor, we don’t buy it either, but we’re here because of this photo. It’s a picture of President Zelensky in may of this year, standing on the eastern front of Ukraine as a hot war was taking place and up to 15,000 Ukrainians have died at the hands of Russians.
Mr. Swalwell: (01:28:45)
I’d like to focus on the impact of President Trump’s conduct, particularly with our allies and our standing in the world. This isn’t just a president, as Professor Karlan has pointed out, asking for another foreign leader to investigate a political opponent and also is a president leveraging a White House visit as well as foreign aid. As the witnesses have testified, Ukraine needs our support to defend itself against Russia. I heard directly from witnesses how important the visit and aid were, particularly from Ambassador Taylor.
Bill Taylor: (01:29:20)
These weapons and this assistance, it allows the Ukrainian military to deter further incursions by the Russians against Ukrainian territory. If that further incursion, further aggression were to take place, more Ukrainians would die.
Mr. Swalwell: (01:29:47)
Professor Karlan, does the president’s decision to withhold from Ukraine such important official acts, the White House visit and military aid in order to pressure President Zelensky relate to the framers concerns about abusive power and entanglements with foreign nations?
Pamela Karlan: (01:30:02)
It relates to the abuse of power. The entanglements with foreign nations is a more complicated concept for the framers than for us.
Mr. Swalwell: (01:30:12)
Professor Karlan, I think you’d agree we are a nation of immigrants.
Pamela Karlan: (01:30:16)
Mr. Swalwell: (01:30:17)
Today, 50 million immigrants live in the United States. I’m moved by one who recently told me, as I was checking into a hotel, about his Romanian family. He came here from Romania and said that every time he had gone home for the last 20 years, he would always tell his family members how corrupt his country was that he had left and why he’d come to the United States.
Mr. Swalwell: (01:30:40)
And he told me, in such accumulating fashion, that when he has gone home recently, they now wag their finger at him and say, “You’re going to lecture us about corruption?” What do you think, Professor Karlan, does the president’s conduct say to the millions of Americans who left their families and livelihoods to come to a country that represents the rule of law?
Pamela Karlan: (01:31:03)
I think it suggests that we don’t believe in the rule of law, and I think it tells emerging democracies around the world not to take it seriously when we tell them that their elections are not legitimate because of foreign interference or their elections are not legitimate because of prosecution of the opposing party. I mean, President Bush announced that he did not consider the elections in Belarus, in 2006, to be legitimate for exactly that reason because they went after political opponents.
Mr. Swalwell: (01:31:35)
Thank, Karlan. Finally, Professor Feldman, Professor Turley has pointed out that we should wait and that we should go to the courts, but you would acknowledge that we’ve gone to the courts. We’ve been in the courts for over six months, many times on matters that are already settled in the United States Supreme Court, particularly US v. Nixon, where the president seems to be running out the clock. Is that right?
Noah Feldman: (01:31:55)
Mr. Swalwell: (01:31:55)
Thank you, and I yield back.
Jerry Nadler: (01:31:57)
Gentleman yields back. In a moment, we will recess for a brief five minutes. First, I ask everyone in the room to please remain seated and quiet while the witnesses exit the room. I also want to remind those in the audience that you may not be guaranteed your seat if you leave the hearing room at this time. This time, the committee will stand in a short recess.
Michael Graham: (01:39:03)
Andy Biggs: (01:48:59)
With President Zelensky. You said the President said, “I would like you to do me a favor,” but that is inaccurate. It was finally clear in that colloquy, and I’m going to read it to you. I would like you to do us a favor, though, because our country has been through a lot.
Andy Biggs: (01:49:13)
One of you said, well, that’s because the President is using royal we. Here the President’s talking about the country. That’s what he’s talking about. It’s audacious to say it’s using the royal we. That’s royal all right, but it ain’t the royal we. And I’ll just tell you, when you come in with a preconceived notion, it’s becomes obvious. One of you just said, Mr. Feldman, you, it was you who said, and I’m going to quote here roughly. I think this is exactly what you said, though. “Until the call on July 25th, I was an impeachment skeptic too.”
Andy Biggs: (01:49:47)
I don’t know. I’m looking at an August 23rd, 2017 publication where you said if President Donald Trump pardons Joe Arpaio, it would be an impeachable offense. He did ultimately pardon him. In 2017 the New York Review of Books, Professor Feldman said defamation by tweet is an impeachable offense.
Andy Biggs: (01:50:15)
And I think of the history of this country, and I think if defamation or libel or slander is an a impeachable offense, I can’t help but reflect about John Adams, about Thomas Jefferson who routinely pilloried their political opponents. In fact, at the time, the factions or parties actually bought newspapers to attack their political opponents. So this rather expansive and generous view you have on what constitutes impeachment is a real problem.
Andy Biggs: (01:50:51)
This morning one of you mentioned the Constitutional Convention, and several of you mentioned Mr. Davies, and you’ve talked about the Constitutional Convention and it’s been a while since I read the minutes, so I just briefly reviewed, because I remembered the discussion on the impeachment as being more pervasive, a little bit more expanded.
Andy Biggs: (01:51:11)
And on July 20th, 1787… It wasn’t 1789 by the way, one you testified it was 1789. It was in 1787, July 20th, Benjamin Franklin is discussing impeachment of a Dutch leader and he talks specifically about what he would anticipate an impeachment to look like. He said it would be a regular and peaceable inquiry that would have taken place, and if guilty, then there’d be a punishment. If acquitted, then the innocent would be restored to the confidence of the public. That needs to be taken to account as well.
Andy Biggs: (01:51:48)
So I look also at a May 17th, 2017 BBC article, which is a discussion about impeachment, because President Trump had fired James Comey. Alex Whiting of Harvard said it was hard to make the obstruction of justice case with this sacking alone. The President had clear legal authority and there was arguably proper or at least other reasons put forward for firing him. And yet what we have here is this insistence by Mr. Gerhardt that that was impeachable. That’s contained in that article. Refer you to it. May 17th, 2017 BBC.
Andy Biggs: (01:52:35)
What I’m suggesting to you today is a reckless bias coming in here. You’re not fact witnesses. You’re supposed to be talking about what the law is, but you came in with a preconceived notion and bias.
Andy Biggs: (01:52:50)
And I want to read one last thing here, if I can find it, from one of our witnesses here, and it’s dealing with something that was said in a Maryland Law Review article in 1999. And basically if I can get to it, he’s talking about this being critical of lack of self doubt and an overwhelming arrogance on the part of law professors who come in and opine on impeachment. That would be you, Mr. Gerhardt, who said something like that. I can’t find my quote or else I’d give it to you.
Andy Biggs: (01:53:29)
And so what I’m telling you is that is what has been on display in this committee today. And with that I yield back.
Jerry Nadler: (01:53:36)
The gentleman yields back. A little while ago, Mr. Gates asked that certain material be inserted into the record by anonymous consent. I asked an opportunity to review it. We have reviewed it. The material will be inserted without objection. Mr. Lieu.
Ted Lieu: (01:53:56)
Thank you, Chairman Adler. I first swore an oath to the Constitution when I was commissioned as an officer in the United States Air Force, and the oath I took was not to a political party or to a president or to a king. It was an oath to a document that has made America the greatest nation on Earth. I never imagined we now be in a situation where the president, or commander in chief, is accused of using his office for personal political gain that betrayed you US national security, hurt our ally Ukraine, and helped our adversary Russia. Now the Constitution provides a safeguard when the president’s abuse of power and betrayal of national interests are so extreme that it warrants impeachment and removal. It seems notable that of all the offenses they could have included and enumerated in the Constitution, bribery is one of only two there are listed. So Professor Feldman, why would the Framers choose bribery of all the powerful offenses they could have included to list?
Noah Feldman: (01:54:58)
Bribery was the classic example for them of the high crime and misdemeanor of abuse of office for personal gain. Because if you take something of value when you’re able to affect an outcome for somebody else, you’re serving your own interests and not the interests of the people. And that was commonly used in impeachment offenses in England, and that’s one of the reasons that they specified it.
Ted Lieu: (01:55:25)
Thank you. Now, earlier in this hearing, Professor Karlan made the point that bribery as envisioned by the Framers was much broader than the narrow federal criminal statute of bribery. I think the reason for that is obvious. We are not in a criminal proceeding. We’re not deciding whether to send President Trump to prison. This is a civil action. It’s an impeachment proceeding to decide whether or not we remove Donald Trump from his job. And so Professor Karlan, it’s true, isn’t it, that we don’t have to meet the standards of a federal bribery statute in order to meet the standards for an impeachable offense?
Pamela Karlan: (01:56:04)
That’s correct. I’m sorry. That’s correct.
Ted Lieu: (01:56:05)
Thank you. Yesterday, Scalia law professor J.W. Verret, who is a lifelong Republican, former Republican Hill staffer who advised the Trump pre-transition team, made the following public statement about Donald Trump’s conduct. The call wasn’t perfect. He committed impeachable offenses including bribery.
Ted Lieu: (01:56:28)
So Professor Karlan, I’m now going to show you two video clips of the witness testimony relating to the President’s withholding of the White House meeting in exchange for the public announcement of an investigation into his political rival.
Speaker 15: (01:56:43)
As I testified previously, Mr. Giuliani’s requests were a quid pro quo for arranging a White House visit for President Zelensky.
Speaker 16: (01:56:54)
By mid July, it was becoming clear to me that the meeting President Zelensky wanted was conditioned on the investigations of Burisma and alleged Ukrainian interference in the 2016 US elections.
Ted Lieu: (01:57:06)
And then I’m going to show you one more video clip relating to the President’s decision to withhold security assistance that Congress had appropriated to Ukraine in exchange for announcement of public investigation of his political rival.
Speaker 15: (01:57:21)
In the absence of any credible explanation for the suspension of aid, I later came to believe that the resumption of security aid would not occur until there was a public statement from Ukraine committing to the investigations of the 2016 elections and Burisma, as Mr. Giuliani had demanded.
Ted Lieu: (01:57:45)
Professor Karlan, does that evidence as well as the evidence in the record tend to show that the President met the standards for bribery as envisioned in the Constitution?
Pamela Karlan: (01:57:56)
Yes, it does.
Ted Lieu: (01:57:57)
I’m also a former prosecutor. I believe the record and that evidence would also meet the standards for criminal bribery. The Supreme Court’s decision in McDonnell was primarily about what constitutes an official act. Their key finding was an official act must involve a formal exercise of governmental power on something specific pending before a public official. Pretty clearly got that here. We have hundreds of millions of dollars of military aid that Congress specifically appropriated. The freezing and unfreezing of that aid is a formal exercise of governmental power.
Ted Lieu: (01:58:33)
But we don’t even have to talk about the crime of bribery. There’s another crime here, which is the solicitation of assistance of a foreign government in a federal election campaign. That straight up violates the Federal Election Campaign Act at 52 USC 30101. And oh, by the way, that act is also one reason Michael Cohen is sitting in prison right now. I yield back.
Jerry Nadler: (01:58:57)
The gentleman yields back. Mr. McClintock.
Tom McClintock: (01:59:01)
Thank you, Mr. Chairman. Could I begin just with a show of hands. How many on the panel actually voted for Donald Trump in 2016?
Pamela Karlan: (01:59:08)
I don’t think we’re obligated to say anything about how we cast our ballots.
Tom McClintock: (01:59:11)
Just show of hands.
Pamela Karlan: (01:59:14)
I will not-
Tom McClintock: (01:59:15)
I think you’ve made your positions, Professor Karlan, very, very clear.
Jerry Nadler: (01:59:18)
The gentleman [inaudible 01:59:19] suspended. Will suspend the clock too.
Pamela Karlan: (01:59:23)
I have a right to cast a secret ballot.
Jerry Nadler: (01:59:24)
Excuse me. You may ask the question.
Tom McClintock: (01:59:26)
Let me rephrase the question. How many of you-
Jerry Nadler: (01:59:28)
Excuse me. The clock is stopped for the moment. The gentleman may ask the question. The witnesses don’t have to respond. The gentleman [crosstalk 01:59:34]
Tom McClintock: (01:59:34)
How many of you supported Donald Trump in 2016? Show of hands. Thank you. Perfect. Professor-
Noah Feldman: (01:59:40)
Not raising our hands is not an indication of an answer, sir.
Tom McClintock: (01:59:43)
Professor Turley, this impeachment inquiry has been predicated on some rather disturbing legal doctrines. One Democrat asserted that hearsay can be much better evidence than direct evidence. Speaker Pelosi and others who have said that the President’s responsibility is to present evidence to prove his innocence. Chairman Schiff’s asserted, and we heard a discussion from some of your colleagues today, that if you invoke legal rights in defense of criminal accusations, ipso facto that’s an obstruction of justice and evidence of guilt.
Tom McClintock: (02:00:16)
My question of you is what does it mean to our American justice system if these doctrines take root in our country?
Jonathan Turley: (02:00:23)
Well, what concerns me the most is that there are no limiting principles that I can see in some of the definitions that my colleagues have put forward. And more importantly, some of these impeachable offenses I’ve only heard about today. I’m not too sure what attempting to abuse office means or how you recognize it, but I’m pretty confident that nobody on this committee truly wants the new standard of impeachment to be betrayal of the national interest. But that is going to be the basis for impeachment?
Tom McClintock: (02:00:59)
Jonathan Turley: (02:00:59)
How many Republicans do you think would say that Barack Obama violated that standard? That’s exactly what James Madison warned you against, is that you would create effectively a vote of no confidence standard in our Constitution.
Tom McClintock: (02:01:14)
Well then, are we in danger of abusing our own power of doing enormous violence to our Constitution by proceeding in this manner? My Democratic colleagues have been searching for a pretext for impeachment since before the President was sworn I. On this panel, Professor Karlan called President Trump’s election illegitimate in 2017. She implied impeachment was a remedy. Professor Feldman advocated impeaching the President over a tweet that he made in March of 2017. That’s just seven weeks after his inauguration. Are we in danger of succumbing to the maxim of Lewis Carroll’s Red Queen, sentence first verdict afterwards?
Jonathan Turley: (02:01:52)
Well, this is part of the problem of how your view of the President can affect your assumptions, your inferences, your view of circumstantial evidence. I’m not suggesting that the evidence, if it was fully investigated, would come out one way or the other. What I’m saying is that we are not dealing with the realm of the unknowable. You have to ask. We’ve burned two months in this House. Two months that you could have been in court seeking a subpoena for these witnesses. It doesn’t mean you have to wait forever, but you could have gotten an order by now. You could have allowed the President to raise an executive privilege.
Tom McClintock: (02:02:33)
I need to go on here. The Constitution says the executive authority shall be vested in a president of the United States. Does that mean some of the executive authority or all of it?
Jonathan Turley: (02:02:43)
Well, obviously there’s checks and balances on all of these, but the executive authority primarily obviously rests with the President, but these are all shared powers and I don’t begrudge the investigation of the Ukraine controversy. I think it was a legitimate investigation. What I begrudge is how it has been conducted.
Tom McClintock: (02:03:02)
Well, I tend to agree with that. The Constitution commands the President take care that the laws be faithfully enforced. That does in effect make him the chief law enforcement officer in the federal government, does it not?
Jonathan Turley: (02:03:14)
That’s commonly expressed that way, yeah.
Tom McClintock: (02:03:16)
So if probable cause exists to believe a crime has been committed, does the President have the authority to inquire into that matter?
Jonathan Turley: (02:03:23)
Yes, but this is where I think we would depart. I’ve been critical of the President in terms of crossing lines with the Justice Department. I think that has caused considerable problems. I also don’t believe it’s appropriate. But we often confuse what is inappropriate with what’s impeachable. Many people feel that what the President has done is obnoxious, contemptible, but contemptible is not synonymous with impeachable.
Tom McClintock: (02:03:47)
Let me ask you one final question. The National Defense Authorization Act that authorized aid the Ukraine requires the Secretary of Defense and State certify that the government of Ukraine is taking substantial actions to make defense institutional reforms for, among other things, for purposes of decreasing corruption. Is the President exercising that responsibility when he inquires into a matter that could involve illegalities between American and Ukrainian officials?
Jonathan Turley: (02:04:15)
That’s what I’m referring to is unexplored defenses. Part of the bias when you look at these facts is you just ignore defenses. You say, “Well, those are just invalid.” But they’re the defenses. They’re the other side’s account for actions, and that’s what hasn’t been explored.
Jerry Nadler: (02:04:30)
Gentleman’s time has expired. Mr. Raskin.
Jamie Raskin: (02:04:33)
Thank you, Mr. Chairman. I want to thank the witnesses for their hard work on a long day. I want to thank them especially for invoking the American revolution, which not only overthrew a king, but created the world’s first anti-monarchical Constitution. Your erudition makes me proud to have spent a quarter century of my career as a fellow Constitutional law professor before running for Congress.
Jamie Raskin: (02:04:56)
Now, Tom Paine said that in the monarchies, the king is law, but in the democracies the law will be king. But today the President advances an essentially monarchical argument. He says that Article Two allows him to do whatever he wants. He not only says that, but he believes it, because he did something no other American president has ever done before. He used foreign military aid as a lever to coerce a foreign government to interfere in an American election to discredit an opponent and advance his reelection campaign. Professor Karlan, what does the existence of the impeachment power tell us about the President’s claim that the Constitution allows him to do whatever he wants?
Pamela Karlan: (02:05:41)
It blows it out of the water.
Jamie Raskin: (02:05:45)
If he’s right and we accept this radical claim that he can do whatever he wants, all future presidents seeking reelection will be able to bring foreign governments into our campaigns to target their rivals and to spread propaganda. That’s astounding. If we let the President get away with this conduct, every president can get away with it. Do you agree with that, Professor Feldman?
Noah Feldman: (02:06:09)
I do. Richard Nixon sent burglars to break into the Democratic National Committee headquarters, but President Trump just made a direct phone call to the president of a foreign country and sought his intervention in an American election.
Jamie Raskin: (02:06:22)
So this is a big moment for America, isn’t it? If Elijah Cummings were here, he would say, “Listen up, people. Listen up.” How we respond will determine the character of our democracy for generations. Now, Professors Feldman, Karlan, Gerhardt tell us there were three dominant reasons invoked at the founding for why we needed an impeachment power. Broadly speaking, it was an instrument of popular self defense against a president behaving like a king and trampling the rule of law, but not just in the normal royal sense of showing cruelty and vanity and treachery and greed and avarice and so on. But when presidents threatened the basic character of our government in the Constitution, that’s what impeachment was about. And the Framers invoked three specific kinds of misconduct so serious and egregious that they thought they warranted impeachment. First, the president might abuse his power by corruptly using his office for personal, political, or financial gain. Well, Professor Feldman, what’s so wrong with that? If the president belongs to my party and I generally like him, what’s so wrong with him using his office to advance his own political ambitions?
Noah Feldman: (02:07:37)
Because the president of the United States works for the people. And so if he seeks personal gain, he’s not serving the interests of the people. He’s rather serving the interests that are specific to him. And that means he’s abusing the office and he’s doing things that he can only get away with because he’s the president. And that is necessarily subject to impeachment.
Jamie Raskin: (02:07:56)
Well, second and third, the Founders expressed fear their president could subvert our democracy by betraying his trust to foreign influence and interference, and also by corrupting the election process. Professor Karlan, you’re one of America’s leading election law scholars. What role does impeachment play in protecting the integrity of our elections, especially in an international context in which Vladimir Putin and other tyrants and despots are interfering to destabilize elections around the world?
Pamela Karlan: (02:08:29)
Well, Congress has enacted a series of laws to make sure that there isn’t foreign influence in our elections, and allowing the President to circumvent that principle is a problem. And as I’ve already testified several times, America is not just the last best hope, as Mr. Jeffrey said, but it’s also the shining city on a hill. And we can’t be the shining city on a hill and promote democracy around the world if we’re not promoting it here at home.
Jamie Raskin: (02:08:55)
Now any one of these actions alone would be sufficient to impeach the president according to the founders. But is it fair to say that all three causes for impeachment explicitly contemplated by the founders, abuse of power, betrayal of our national security, and corruption of our elections, are present in this president’s conduct? Yes or no, Professor Feldman?
Noah Feldman: (02:09:17)
Jamie Raskin: (02:09:17)
And Professor Gerhardt?
Prof. Gerhardt: (02:09:18)
Jamie Raskin: (02:09:19)
And Professor Karlan?
Pamela Karlan: (02:09:20)
Jamie Raskin: (02:09:20)
You all agree? Okay. And are any of you aware of any other president who has essentially triggered all three concerns that animated the founders?
Noah Feldman: (02:09:32)
Pamela Karlan: (02:09:33)
Prof. Gerhardt: (02:09:34)
No as well.
Jamie Raskin: (02:09:36)
Mr. Chairman, it’s hard to think of a more monarchical sentiment than I can do whatever I want as president, and I yield back.
Jerry Nadler: (02:09:43)
Gentleman yields back. Ms. Lesko.
Debbie. Lesko: (02:09:46)
Thank you, Mr. Chair. Mr. Chair, I ask unanimous consent to insert into the record a letter I wrote and sent to you asking, calling on you to cancel any and all future impeachment hearings and outlining how the process-
Jerry Nadler: (02:10:03)
Without objection, the letter will be entered into the record.
Debbie. Lesko: (02:10:05)
Thank you. During an interview, Mr. Chairman, on MSNBC’s Morning Joe on November 26, 2018, Chairman Nadler outlined a three pronged test that he said would allow for a legitimate impeachment proceeding. Now I quote Chairman Nadler’s remarks, and this is what he said.
Debbie. Lesko: (02:10:35)
There really are three questions, I think. First, has the President committed impeachable offenses? Second, do those offenses rise to the gravity that’s worth putting the country through the drama of impeachment? And number three, because you don’t want to tear the country apart. You don’t want half of the country to say to the other half for the next 30 years, “We won the election. You stole it from us.” You have to be able to think at the beginning of the impeachment process that the evidence is so clear of offenses so grave that once you’ve laid out all of the evidence, a good fraction of the opposition, the voters will reluctantly admit to themselves they had to do it. Otherwise, you have a partisan impeachment which will tear the country apart. If you meet these three tests, then I think you do the impeachment.
Debbie. Lesko: (02:11:40)
And those were the words of Chairman Nadler. Now, let’s see if Chairman Nadler’s three prong test has been met. First, has the President committed an impeachable offense? No. The evidence and testimony has not revealed any impeachable offense. Second, do those offenses
Debbie. Lesko: (02:12:03)
… offense. Second, do those offenses rise to the gravity that’s worth putting the country through the drama of impeachment? Again, the answer is no. There is nothing here that rises to the gravity that’s worth putting the country through the drama of impeachment. And third, have the Democrats laid out a case so clear that even the opposition has to agree? Absolutely not. You and House Democrat leadership are tearing apart the country. You said the evidence needs to be clear. It is not. You said offenses need to be grave. They are not. You said that once the evidence is laid out that the opposition will admit. They had to do it. That has not happened. In fact, polling and the fact that not one single Republican voted on the impeachment inquiry resolution or on the Schiff report reveal the opposite is true. In fact, what you and your Democratic colleagues have done is opposite of what you said had to be done.
Debbie. Lesko: (02:13:20)
This is a partisan impeachment and it is tearing the country apart. I take this all to mean that Chairman Nadler, along with the rest of the Democratic caucus is prepared to continue these entirely partisan unfair proceedings and traumatize the American people, all for a political purpose. I think that’s a shame. That’s not leadership. That’s a sham. And so I ask, Mr. Turley, has Chairman Nadler satisfied his three-pronged test for impeachment?
Jonathan Turley: (02:14:01)
With all due respect to Chairman, I do not believe that those factors were satisfied.
Debbie. Lesko: (02:14:06)
Thank you. And I want to correct something for the record as well. Repeatedly today and other days, Democrats have repeated what was said in the text of the call. Do me a favor though … And they imply it was against President Biden … to investigate President Biden. It was not. It was not. In fact, let me read what the transcript says. It says, the President Trump, “I would like you to do as a favor though, because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine. They say CrowdStrike … I guess you have one of your own wealthy people.” It says nothing about the Biden, so please stop referencing those two together and I yield back.
Jerry Nadler: (02:14:58)
Gentlelady yields back at Ms. Jayapal.
Ms. Jayapal: (02:15:00)
Thank you, Mr. Chairman. This is a deeply grave moment that we find ourselves in and I thought the threat to our nation was well articulated earlier today by Professor Feldman when you said, “If we cannot impeach a president who abuses his office for personal advantage, we no longer live in a democracy. We live in a monarchy or we live under a dictatorship.” My view is that if people cannot depend on the fairness of our elections, then what people are calling divisive today will be absolutely nothing compared to the shredding of our democracy. After the events of Ukraine unfolded, the president claimed that the reason he requested an investigation into his political opponents and withheld desperately needed military aid for Ukraine was supposedly because he was worried about corruption. However, contrary to the president’s statements, various witnesses including Vice President Pence’s special advisor, Jennifer Williams, testified that the president’s request was political. Take a listen.
Jennifer W.: (02:16:06)
I found the July 25th phone call unusual, because in contrast to other presidential calls I had observed, it involved discussion of what appeared to be a domestic political matter.
Ms. Jayapal: (02:16:17)
Professor Karlan, is it common for someone who gets caught to deny that their behavior is impermissible?
Pamela Karlan: (02:16:23)
Ms. Jayapal: (02:16:25)
And one of the questions before us is whether the president’s claim that he cared about corruption is actually credible. Now, you’ve argued before the Supreme Court, and the Supreme Court determined that when assessing credibility, we should look at a number of factors including impact, historical background, and whether there are departures from normal procedures, correct?
Pamela Karlan: (02:16:44)
Ms. Jayapal: (02:16:45)
So what we’re ultimately trying to do is figure out if someone’s explanation fits with the facts, and if it doesn’t, then the explanation may not be true. So let’s explore that. Lieutenant Colonel Vindman testified that he prepared talking points on anti-corruption reform for President Trump’s call with Ukrainian President Zelensky. However, based on the transcripts released of those calls in April and July, President Trump never mentioned these points of corruption. He actually never mentioned the word corruption. Does that go to any of those factors? Is that significant?
Pamela Karlan: (02:17:22)
Yes, it goes to the one about procedural irregularities and it also goes to the one that says you look at the kind of things that led up to the decision that you’re trying to figure out somebody’s motive about.
Ms. Jayapal: (02:17:32)
So let’s try another one. Ambassador Volker testified that the president never expressed any concerns to him about corruption in any country other than Ukraine. Would that be relevant to your assessment?
Pamela Karlan: (02:17:44)
Yes, it would. It goes to the factor about substantive departures.
Ms. Jayapal: (02:17:49)
And Professor Karlan, there is, in fact, and my colleague, Mr. McClintock mentioned this earlier, a process outlined in the National Defense Authorization Act to assess whether countries that are receiving military aid have done enough to fight corruption. In May of 2019, my Republican colleague did not say this, the Department of Defense actually wrote a letter determining that Ukraine passed this assessment. And yet, President Trump set aside that assessment and withheld the Congressionally approved aid to Ukraine anyway, in direct contradiction to the established procedures he should have followed had he cared about corruption. Is that relevant to your assessment?
Pamela Karlan: (02:18:34)
Yes. That would also go to the factors the Supreme Court’s discussed.
Ms. Jayapal: (02:18:37)
And what about the fact, and I think you mentioned this earlier as one of the key things that you read in the testimony, that President Trump wanted the investigations of Burisma and the Bidens announced, but that he actually didn’t care whether they were conducted. That was an Ambassador Sondland’s testimony. What would you say about that?
Pamela Karlan: (02:18:58)
That goes to whether the claim that this is about politics is a persuasive claim because that goes to the fact that it’s being announced publicly, which is an odd thing. I mean, maybe Mr. Swalwell could probably answer this better than I because he was a prosecutor, but generally you don’t announce the investigation in a criminal case before you conduct it, because it puts the person on notice that they are under investigation.
Ms. Jayapal: (02:19:23)
And given all of these facts, and there are more that we don’t have time to get to, how would you assess the credibility of the president’s claim that he was worried about corruption?
Pamela Karlan: (02:19:33)
Well, I think you ought to make that credibility determination because you have the sole power of impeachment. If I were a member of the House of Representatives, I would infer from this that he was doing it for political reasons.
Ms. Jayapal: (02:19:45)
If we don’t stand up now to a president who abuses his power, we risk sending a message to all future presidents that they can put their own personal political interest ahead of the American people, our national security and our elections, and that is the gravest of threats to our democracy. I yield back.
Jerry Nadler: (02:20:03)
Gentlelady yields back. I now recognize Mr. Gohmert for the purpose of unanimous consent request.
Mr. Gohmert: (02:20:09)
Yes, Mr. Chairman. I would ask unanimous consent to all for article by Daniel Hough.
Jerry Nadler: (02:20:17)
Without objection, the article will be entered into the record.
Mr. Gohmert: (02:20:20)
Jerry Nadler: (02:20:20)
And I recognize Mr. Reschenthaler to question the witnesses.
Mr. R.: (02:20:26)
Thank you, Mr. Chairman. I’m starting off today doing something that I don’t normally do and I’m going to quote speaker of the House, Nancy Pelosi. In March, the speaker told the Washington post, and I’m going to quote this, “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path because it divides the country.” Well, in that, the speaker and I both agree. And you know who else agrees? The founding fathers. The founding fathers recognized that crimes warranting impeachment must be so severe, regardless of political party, that there is an agreement that the actions are impeachable. But let’s go back to Speaker Pelosi’s words just one more time. The speaker says a case for impeachment must be also compelling.
Mr. R.: (02:21:18)
Well, after last months Schiff show, this is what we learned. There is no evidence that the president directed anyone to tell the Ukrainians that aid was conditioned on investigation. Aside from the mirror presumptions by Ambassador Sondland, there is no evidence that Trump was conditioning aid on investigation. And if you doubt me, just go back to the actual transcript, because never in that call was the 2020 election mentioned and never in that call was military aid mentioned. In fact, President Trump told Senator Johnson on 31 August that aid was not conditioned on investigation. Rather, President Trump was rightfully skeptical about the Ukrainians. Their country has a history of corruption and he merely wanted the Europeans to contribute more to a problem in their own backyard. But I think we can all agree that it’s appropriate for the president, as a steward of taxpayer dollars, to ensure that our money isn’t wasted.
Mr. R.: (02:22:18)
I said I wasn’t going to go back to Speaker Pelosi, but I do want to go back because I forgot she also said that impeachment should be only pursued when it’s “overwhelming.” So it’s probably not good for the Democrats that none of the witnesses who testified before the intel committee were able to provide firsthand evidence of a quid pro quo. But I forgot, we’re calling it bribery now after the focus group last week. And there’s no evidence of bribery either. Instead, the two people who did have firsthand knowledge, the president and President Zelensky, both say there was no pressure on the Ukrainians.
Mr. R.: (02:22:52)
And again, the transcript of July 25th backs this up. And to go back to Nancy Pelosi one more time, she said that the movement for impeachment should be “bipartisan,” which is actually the same sentiment echoed by our chairman, Jerry Nadler, who in 1998 said, and I quote, “There must never be a narrowly voted impeachment supported by one of the major political parties and opposed by another.” Well, when the House voted on the Democrat’s impeachment inquiry, it was just that. The only bipartisan vote was the one imposing the inquiry. The partisan vote was the one to move forward with the inquiry. So we’re 0 for three.
Mr. R.: (02:23:37)
Let’s face it, this is a sham impeachment against President Trump. It’s not compelling, it’s not overwhelming, and it’s not bipartisan. So even by the speaker’s own criteria, this has failed. Rather, what this is, is nothing more than a partisan witch hunt, which denies the fundamental fairness of our American justice system and denies due process to the President of the United States. The Democrats case is based on nothing more than thoughts, feelings and conjectures and a few … the thoughts and feelings of a few unelected career bureaucrats, and the American people are absolutely fed up. Instead of wasting our time on this, we should be doing things like passing USMCA, lowering the cost of prescription drugs and working on our failing infrastructure in this country. With that said, Mr. Turley, I’ve watched as your words had been twisted and mangled all day long. Is there anything that you would like to clarify?
Jonathan Turley: (02:24:32)
Only this. I think that one of the disagreements that we have and I have with my esteemed colleagues, is what makes a legitimate impeachment, not what technically satisfies an impeachment, there’s very few technical requirements of an impeachment. The question is, what is expected of you? And my objection is that there is a constant preference for inference over information, for presumptions over proof. That’s because this record hasn’t been developed. And if you’re going to remove a president … If you believe in democracy, if you’re going to remove a sitting president, then you have an obligation not to rely on inference when there’s still information you could gather. And that’s what I’m saying. It’s not that you can’t do this, you just can’t do it this way.
Mr. R.: (02:25:23)
Thank you, Mr. Chairman.
Jerry Nadler: (02:25:24)
The gentleman yields back. I now recognize Ms. Jackson Lee for the purpose of unanimous consent request.
Ms. Jackson Lee: (02:25:33)
Thank you, Mr. Chairman. I’d like unanimous consent to place in the record a new statement from Checks and Balances on President Trump’s abuse of office by Republican and Democratic Attorney Generals. I have unanimous consent.
Jerry Nadler: (02:25:44)
Without objection. I now recognize Ms. Demings. Five minutes for questioning the witnesses.
Ms. Demings: (02:25:49)
Thank you, Mr. Chairman. As a former law enforcement official, I know firsthand that the rule of law is the strength of our democracy and no one is above it, not our neighbors in our various communities, not our coworkers and not the President of the United States. Yet the president have said that he can not be prosecuted for criminal conduct, that he need not comply with Congressional requests and subpoenas. Matter of fact, the president is trying to absorb himself of any accountability. Since the beginning of the investigation in early September, the House sent multiple letters, document requests, and subpoenas to the White House. Yet the president has refused to produce documents and has directed others not to produce documents. He has prevented key White House officials from testifying. The president’s obstruction of Congress is pervasive. Since the House began its investigation, the White House has produced zero subpoenaed documents. In addition, at the president’s direction, more than a dozen members of his administration have defied Congressional subpoenas.
Ms. Demings: (02:27:19)
The following slides shows those who have refused to comply at the president’s direction. We are facing a categorical blockade by a president who’s desperate to prevent any investigation into his wrongdoing. Professor Gerhardt, has a president ever refused to cooperate in an impeachment investigation?
Prof. Gerhardt: (02:27:49)
Not until now.
Ms. Demings: (02:27:54)
And any president who … I know Nixon delayed or tried to delay turning over information. When that occurred, was it at the same level that we’re seeing today?
Prof. Gerhardt: (02:28:07)
President Nixon also had ordered his subordinates to cooperate and testify. He didn’t shut down any of that. He produced documents. And there were times … There were certainly disagreements, but there was not a wholesale, broad scale, across the board refusal to even recognize the legitimacy of this House doing an inquiry.
Ms. Demings: (02:28:29)
Did Nixon’s obstruction result in an Article of Impeachment?
Prof. Gerhardt: (02:28:32)
Yes, ma’am, Article Three.
Ms. Demings: (02:28:35)
Professor Feldman, is it fair to say that if a president stonewalls and investigation like we are clearly seeing today into whether he has committed an impeachable offense, he risks rendering the impeachment power moot?
Noah Feldman: (02:28:50)
Yes, and indeed that’s the inevitable effect of a president refusing to participate. He’s denying the power of Congress under the Constitution to oversee him and to exercise its capacity to impeach.
Ms. Demings: (02:29:02)
Professor Gerhardt, when a president prevents witnesses from complying with Congressional subpoenas, are we entitled to make any perceptions about what they would say if they testified?
Prof. Gerhardt: (02:29:15)
Yes ma’am, you are. And I might just point out that one of the difficulties with asking for a more thorough investigation is that’s exactly what the House has tried to conduct here and the president has refused to comply with subpoenas and other requests for information. That’s where the blockage occurs. That’s why there are documents not produced and why there are people not testifying, the people here have said today they want to hear from.
Ms. Demings: (02:29:35)
In relation to what you just said, Ambassador Sondland testified and I quote, “Everyone was in the loop. It was no secret.” Professor Gerhardt, how is Ambassador Sondland’s testimony relevant here?
Prof. Gerhardt: (02:29:47)
His testimony is relevant. It’s also rather chilling to hear him say that everybody’s in the loop. And when he says that he’s talking about the people at the highest levels of our government, all of whom are refusing to testify under oath or comply with subpoenas.
Ms. Demings: (02:30:03)
Professors, I want to thank you for your testimony. The president used the power of his office to pressure a foreign head of state to investigate an American citizen in order to benefit his domestic political situation. After he was caught, and I do know something about that, this president proceeded to cover it up and refuse to comply with valid Congressional subpoenas. The framers included impeachment in the Constitution to ensure that no one, no one, is above the law, including and especially the President of the United States. Thank you Mr. Chair, and I yield back.
Jerry Nadler: (02:30:51)
Gentlelady yields back. Mr. Cline is recognized.
Mr. Cline: (02:30:54)
Thank you, Mr. Chairman. Oh, it’s just past five o’clock and a lot of families are just getting home from work right now. They’re turning on the TV and they’re wondering what they’re watching on TV. They’re asking themselves, “Is this a rerun, because I thought I saw this a couple of weeks ago?” But no, this is not a rerun, unfortunately. This is act two of the three-part tragedy, the impeachment of President Trump. And what we’re seeing here is a several very accomplished Constitutional scholars attempting to divine the intent, whether it’s of the president or of the various witnesses who appeared during the Schiff hearings, and it’s very frustrating to me as a member of the Judiciary Committee, why we are where we are today.
Mr. Cline: (02:31:43)
I asked to be a member of this committee because of its storied history because it was the defender of the Constitution, because it was one of the oldest committees in the Congress established by another Virginian, John George Jackson. It’s because two of my immediate predecessors, Congressman Bob Goodlatte, who chaired this committee and Congressman Caldwell Butler also served on this committee, but the committee that they served under, served on, is dead. That committee doesn’t exist anymore. That committee is gone.
Mr. Cline: (02:32:20)
Apparently now we don’t even get to sit in the Judiciary Committee Room. We’re in the Ways and Means Committee Room. I don’t know why. Maybe because there’s more room maybe because the portraits of the various chairman whose … would be staring down at us might just intimidate the other side as they attempt what is essentially a sham impeachment of this precedent. You know, looking at where we are, the lack of the use of the Rodino rules in this process is shameful. The fact that we got witness testimony for this hearing this morning is shameful. The fact that we got the Intelligence Committee report yesterday, 300 pages of it, is shameful.
Mr. Cline: (02:33:12)
I watched the Intelligence Committee hearings from the back, although I couldn’t watch them all because the Judiciary Committee actually scheduled business during the Intelligence Committee hearings, so the Judiciary Committee members weren’t able to watch all of the hearings. But I didn’t get to … I get to read the transcripts of the hearings that were held in private. I was not able to be a part of the Intelligence Committee hearings that were in the SCIF. We haven’t seen the evidence from the Intelligence Committee yet. We’ve asked for it. We haven’t received it. We haven’t heard from any fact witnesses yet before we get to hear from these Constitutional scholars about whether or not the facts rise to the level of an impeachment impeachable offense. Mr. Turley, it’s not just your family and dog who are angry. Many of us on this committee are angry. Many of us watching at home across America are angry because this show has degenerated into a farce.
Mr. Cline: (02:34:20)
And as I said, the Judiciary Committee of my predecessors is dead. I look to a former chairman, Daniel Webster, who said, “We are all agents of the same supreme power, the people.” And it’s the people who elected this president in 2016 and it’s the people who should have the choice as to whether or not to vote for this president in 2020, not the members of this committee, not Speaker Nancy Pelosi and not the members of this House of Representatives. It should be the people of the United States who get to decide who their president is in 2020.
Mr. Cline: (02:35:06)
I asked several questions about obstruction of justice to Mr. Mueller when he testified. Mr. Turley, I know that you mentioned obstruction of justice several times in your testimony. I want to yield to Mr. Ratcliffe to ask a concise question about that issue.
John Ratcliffe: (02:35:25)
Thank you, gentleman, for yielding. Professor Turley, in the last few days we’ve been hearing that despite no questions to any witnesses during the first two months of the first phase of this impeachment inquiry, that the Democrats may be dusting off the obstruction of justice portion of the Muller report. It seems to me that we all remember how painful it was to listen to the special counsel’s analysis of the obstruction of justice portion of that report. I’d like you to address the fatal flaws from your perspective with regard to the obstruction of justice portion of that-
Jerry Nadler: (02:36:00)
The gentleman’s time has expired. The witness may answer the question briefly.
Jonathan Turley: (02:36:04)
Thank you, Mr. Chairman. I’ve been a critic of the obstruction theory behind the Russian investigation because once again, it doesn’t meet what I think are the clear standards for obstruction. There were 10 issues that Mueller addressed. The only one that I think that raised a serious issue, quite frankly, was the matter with Don McGahn. There’s a disagreement about that. But also the Department of Justice rejected the obstruction of justice claim and it was not just the attorney general. It was also the deputy attorney general, Rod Rosenstein.
Jerry Nadler: (02:36:35)
The gentlemen is well … The gentleman’s time is well expired. Mr. Correa.
Mr. Correa: (02:36:42)
Thank you Mr. Chairman, and I’d like to thank our witnesses for being here today. I can assure your testimony is important not only to this body but to America that is listening very intently on what the issues before us are and why is it so important that all of us understand the issues before us. Professor Feldman, as was just discussed, President Trump has ordered the executive branch to completely blockade the efforts of this House to investigate whether he committed high crimes and misdemeanors in his dealings with the Ukraine. Is that correct?
Noah Feldman: (02:37:19)
Yes, it is.
Mr. Correa: (02:37:20)
President Trump has also asserted that many officials are somehow absolutely immune from testifying in this impeachment inquiry. On the screen behind you is the opinion by Judge Jackson, a federal judge here in DC, that rejects President Trump’s assertion. Professor Feldman, Do you agree with Judge Jackson’s ruling that President Trump has invoked a non-existent legal basis to block witnesses from testifying in this impeachment inquiry?
Noah Feldman: (02:37:54)
I agree with the thrust of Judge Ketanji Brown Jackson’s opinion. I think that she correctly held that there is no absolute immunity which would protect a presidential adviser from having to appear before the House of Representatives and testify. She did not make a ruling as to whether executive privilege would apply in any given situation. I think that was also appropriate because the issue had not yet arisen.
Mr. Correa: (02:38:17)
And let me quote Judge Jackson. “The primary takeaway from the past 250 years of recorded American history is that presidents are not kings.” Professor Feldman, in the framers’ view, does a president act more like a leader of democracy or more like a monarch when he orders officials to defy Congress as it tries to investigate abuse of power and corruption of electeds?
Noah Feldman: (02:38:47)
Sorry. I don’t even think the framers could have imagined that a president would flatly refuse to participate in an impeachment inquiry, given that they gave the power of impeachment to the House of Representatives and assumed that the structure of the Constitution would allow the House to oversee the president.
Mr. Correa: (02:39:02)
Thank you. Professor Gerhardt.
Prof. Gerhardt: (02:39:05)
Mr. Correa: (02:39:05)
Where can we look in the Constitution to understand whether the president must comply with the impeachment investigations?
Prof. Gerhardt: (02:39:13)
I think you can look throughout the entire Constitution. A good place, of course, includes the supremacy clause. The president also takes an oath. He takes an oath to support and defend the Constitution of United States. That means that he’s assuming office with certain constraints on what he may do and that there are measures for accountability for any failure to follow his duty or follow the Constitution.
Mr. Correa: (02:39:38)
Thank you. And the president has said that he is above the law, that Article Two of the Constitution allows him to, and I quote, “do whatever I want.” That can’t be true. Judge Jackson has said that no one is above the law. Personally, I grew up in California in the 1960s. It was a time when we were going to beat the Russians to the moon. We were full of optimism. We believed in American democracy. We were the best in the world. And back home on Main Street, my mom and dad struggled to survive day to day. My mom worked as a maid cleaning hotel rooms for a buck 50 an hour. And my dad worked at the local paper mill, trying to survive day to day. And what got us up in the morning was the belief, the optimism that tomorrow was going to be better than today.
Mr. Correa: (02:40:36)
We’re a nation of freedom, democracy, economic opportunity. And we always know that tomorrow is going to be better. And today I personally sit as a testament to the greatness of this nation [inaudible 02:40:51] in Congress. And I sit here in this committee room, also with one very important mission, which is to keep the American dream alive, to ensure that all of us are equal, to ensure that nobody, nobody is above the law and to ensure that our Constitution and that our Congressional oversight of the presidency is still something with meaning. Thank you. Mr. Chair, I yield back.
Jerry Nadler: (02:41:25)
The gentleman yields back. Mr. Armstrong.
Mr. Armstrong: (02:41:27)
Thank you Mr. Chairman. You know, all day long we’ve been sitting here and listening to my friends across the aisle and their witnesses claim that the president demanded Ukraine do us a favor by assisting in 2020 reelection campaign before he would release the military aid. This is like everything else in the sham impeachment, purposefully misleading and not based on the facts. So let’s review the actual transcript of the call. They never mentioned the 2020 election. They never mentioned military aid. It does, however, clearly show that the favor the president requested was assistance with the ongoing investigation into the 2016 election.
Mr. Armstrong: (02:42:07)
Those investigations, particularly the one being run by U.S. Attorney Jeff Durham, should concern Democrats. And the transcript of this call shows that the president was worried about the efforts of Ukraine relating to the 2016 election. We know this, and notice I’m using the word know and not the word infer, from reading the transcript and because he spoke about it ending with Mueller.
Mr. Armstrong: (02:42:33)
We know this because he wants the attorney general to get in touch with the Ukrainians about the issue. We have a trade deal with Ukraine governing these sorts of international investigations. But like so many other things, these facts are inconvenient for Democrats. They don’t fit the impeachment narrative so they’re misrepresented or ignored. And I think it’s important when we talk about this and whatever the burden of proof beyond a reasonable doubt, clear and convincing evidence, whether it’s a judicial hearing, a quasi-judicial hearing or a Congressional hearing, when we are talking about this issues, I think we need to start with how we look at it.
Mr. Armstrong: (02:43:05)
And I’m not a Constitutional law professor, I’m just an old criminal defense attorney. But when I walk into a courtroom, I think of three things. What’s the crime charge, what’s the conduct, and who’s the victim? And we’ve managed to make it till five o’clock today before we’ve talked about the alleged victim of the crime and that’s President Zelensky. And three different times President Zelensky, at least three different times, has denied being pressured by the president.
Mr. Armstrong: (02:43:29)
The call shows laughter, pleasantries, cordiality. September 25th, President Zelensky states, “No, you heard that we had a good phone call. It was normal. We spoke about many things. I think you read it and nobody pushed me.” October 10th, President Zelensky had a press conference and I encourage everybody to watch it. Even if you don’t understand it, 90% of communication’s nonverbal. You tell me if you think he’s lying. There was no blackmail.
Mr. Armstrong: (02:43:58)
December 2nd, this Monday. ” I never talked to the president from the position of quid pro quo.” So we have the alleged victim of quid pro quo, bribery, extortion, whatever we’re dealing with now today, repeatedly and adamantly shouting from the rooftops that he never felt pressure, that he was not the victim of anything. So in order for this whole thing to stick, we have to believe that President Zelensky is a pathological liar, or that the Ukrainian president and the country are so weak that he has no choice but to parade himself out there, demoralize himself for the good of his country.
Mr. Armstrong: (02:44:37)
Either of these two assertions weakens their countries and harms our efforts to help the Ukraine and also begs the question of how on earth did President Zelensky withstand this illegal and impeachable pressure to begin with? Because this fact still has not changed. The aid was released to Ukraine and did not take any action from them in order for it to flow. And with that I yield to my friend, Mr. Jordan.
Mr. Armstrong: (02:45:03)
The action from them in order for it to flow and with that I yield to my friend Mr. Jordan.
Jim Jordan: (02:45:04)
I thank the gentleman for yelling. Professor Karlan, context is important, isn’t it?
Pamela Karlan: (02:45:08)
Jim Jordan: (02:45:09)
Yeah because just a few minutes ago when when our colleague from Florida presented a statement you made, you said, “Well you’ve got to take that statement in context,” but it seems to me you don’t want to extend the same or apply the same standard to the president because the now famous quote, “I would like you to do us a favor.” You said about an hour and a half ago that that didn’t mean us. It meant the president himself, but that’s the clear reading of this. “I would like you to do us a favor though because,” you know what the next two words are?
Pamela Karlan: (02:45:36)
I don’t have the document.
Jim Jordan: (02:45:37)
I’ll tell you, “Because our country.” He didn’t say I would like you to do me a favor though because I have been through a lot. He said, “I want you to do us a favor though because our country has been through a lot.” You know when this call happened? Happened the day after Mueller was in front of this committee. Of course our country was put through two years of this and the idea that you’re now going to say, “Oh, this is the Royal we and he’s talking about himself,” ignores the entire context of his statement. That whole paragraph. You know what he ends in that paragraph with? Talking about Bob Mueller and this is the basis for this impeachment, this call. It couldn’t be further from the truth.
Jim Jordan: (02:46:14)
You want the standard to apply when representative Gates makes one of your statements, “Oh, you’ve got to look at the context,” but when the President of the United States is clear, you try to change his word and when the context is clear, he’s talking about the two years that this country went through because of this Mueller report. Somehow that standard doesn’t apply to the president. That is ridiculous.
Jerry Nadler: (02:46:32)
Gentleman’s time is expired. Ms. Scanlon?
Ms. Scanlon: (02:46:36)
I want to thank our constitutional experts for walking us through the framers thinking on impeachment and why they decided it was a necessary part of our constitution. I’m going to ask you to help us understand the implications of the president’s obstruction of Congress’s investigation into his use of the office of the president to squeeze the Ukrainian government to help the Trump reelection campaign, and there’s certainly hundreds of pages on how one reaches that conclusion. We know the president’s obstruction did not begin with the Ukraine investigation. Instead, his conduct is part of a pattern and I’ll direct your attention to the timeline on the screen. In the left hand column, we see the president’s statement from his July call in which he pressured Ukraine, a foreign government, to meddle in our elections. Then once Congress got wind of it, the president tried to cover up his involvement by obstructing the congressional investigation and refusing to cooperate, but this isn’t the first time we’ve seen this kind of obstruction.
Ms. Scanlon: (02:47:40)
In the right hand column, we can flash back to the 2016 election when the president welcomed and used Russians interference in our election, and again when the Special Counsel and then this committee tried to investigate the extent of his involvement, he did everything he could to cover it up. So it appears the president’s obstruction of investigations is part of a pattern. First, he invites foreign powers to interfere in our elections. Then he covers it up, and finally he obstructs lawful inquiries into his behavior whether by Congress or law enforcement, and then he does it again. So Professor Gerhardt, how does the existence of such a pattern help determine whether the president’s conduct is impeachable?
Prof. Gerhardt: (02:48:23)
The pattern, of course gives us a tremendous insight into the context of his behavior. When he’s acting and how do we explain those actions by looking at the pattern? We can infer I think a very strong inference in fact, is that this is deviating from the usual practice and he’s been systematically heading towards a culmination where he can ask this question. By the way, after the July 25th call, the money’s not yet released. There’s ongoing conversations we learned from other testimony that essentially the money was being withheld because the president wanted to make sure the deliverable was going to happen. That is the announcement of an investigation.
Ms. Scanlon: (02:49:05)
In addition to the money not being released, there also was not the White House meeting, which was so important to Ukrainian security. Right?
Prof. Gerhardt: (02:49:13)
Yes ma’am that’s right.
Ms. Scanlon: (02:49:14)
Okay. Professor Feldman, we noted previously that a federal district court recently rejected the president’s attempt to block witnesses from testifying to Congress, saying that presidents are not kings. The founders included two critical provisions in our constitution to prevent our president from becoming a king and our democracy from becoming a monarchy and those protections were presidential elections and impeachment, correct?
Noah Feldman: (02:49:40)
Ms. Scanlon: (02:49:41)
Based on the pattern of conduct that we’re discussing today, the pattern of inviting foreign interference in our elections for political gain and then obstructing lawful investigation, has the president undermined both of those protections?
Noah Feldman: (02:49:54)
He has and it’s crucial to note that the victim of a high crime in misdemeanors such as the president’s alleged to have committed is not President Zelensky and is not the Ukrainian people. The victim of the high crime and misdemeanor is the American people. Alexander Hamilton said very clearly that the nature of a high crime and misdemeanor is that they are related to injuries done to the society itself. We, the American people, are the victims of the high crime and misdemeanor.
Ms. Scanlon: (02:50:20)
What is the appropriate remedy in such a circumstance?
Noah Feldman: (02:50:22)
The framers created one remedy to respond to high crimes and misdemeanors and that was impeachment.
Ms. Scanlon: (02:50:28)
Thank you. I’ve spent over 30 years working to help clients and school children understand the importance of our constitutional system and the importance of the rule of law. So the president’s behavior is deeply, deeply troubling. The president welcomed and used election interference by Russia, publicly admitted he would do it again, and did in fact do it again by soliciting election interference from Ukraine. Throughout the president has tried to cover up his misconduct. This isn’t complicated. The founders were clear and we must be too. Such behavior in a president of the United States is not acceptable. I yield back.
Jerry Nadler: (02:51:11)
The general lady yields back. Mrs. Cicilline, we recognize your unanimous consent request.
Mrs. Cicilline: (02:51:19)
Mr. Chairman, I ask unanimous consent that a document which lists the 400 pieces of legislation passed by the house, 275 bipartisan bills, 80% which remain languishing in the setup you’ve made a part of the record in response to Mr. Gates claim that we’re not getting the work done.
Jerry Nadler: (02:51:35)
Objection.The document would be made part of the record. Mr. Big says he is recognized for unanimous consent request.
Mr. Big: (02:51:40)
Yes. Mr Chairman, I seek unanimous consent for a packet of 54 documents and items which have previously been submitted.
Jerry Nadler: (02:51:47)
Without objection, the documents will be entered into the record.
Mrs. Cicilline: (02:51:50)
Mr. Chairman may I have another unanimous consent?
Jerry Nadler: (02:51:52)
What purpose does the gentleman see?
Speaker 17: (02:51:54)
Mr. Chairman, I ask unanimous consent that this article was just published about 15 minutes ago entitled law professor Jonathan Turley said Democrats are setting a record for a fast impeachment, that’s demonstrably false be made part of the record.
Jerry Nadler: (02:52:07)
Without objection. Without objection, the document will be made part of the record. Who CC recognition?
Speaker 18: (02:52:13)
Jerry Nadler: (02:52:13)
What purpose does a gentleman seek recognition?
Speaker 18: (02:52:15)
Seek unanimous consent to enter into record a tweet that the First Lady of the United States just issued within the hour. It says, “A minor child deserves privacy and should be kept out of politics. Pamela Karl and you should be ashamed of your very angry and obviously biased public pandering and using a child to do it.”
Jerry Nadler: (02:52:32)
Without objection, the document will be entered into the record. Mr. Steube’s recognized for the purpose of questioning the witnesses. Mr. Steube’s is not here momentarily. Ms. Garcia is recognized.
Ms. Garcia: (02:52:51)
Thank you Mr. Chairman and I too want to thank all the witnesses for their time and their patience today. I know it’s been a long day, but the end is in sight. As my colleague Ms. Scanlan, observed the similarities between the president’s conduct in the Ukraine investigation and his conduct in the Special Counsel’s investigation are hard to ignore. In fact, we’re seeing it as a pattern of a presidential abuse of power. Their president called the Ukrainian investigation a hoax and the Mueller investigation a witch hunt. He has threatened the Ukraine whistleblower for not testifying like he threatened to fire his attorney general for not obstructing the Russia investigation. The president fired Ambassador Yovanovitch and publicly tarnished her reputation much in the same way he fired his White House counsel and publicly attacked his integrity. Finally, the president attacked the civil servants who have testified about Ukraine just like he attacked career officials of the Department of Justice for investigate in his obstruction of the Russia investigation. Under any other circumstances, such behavior by any American president would be shocking, but here it is a repeat of what we have already seen the Special Counsel’s investigation. I’d like to take a moment to discuss the president’s efforts to obstruct a Special Counsel’s investigation, a subject that this committee has been investigating since March. Here are two slides. The first one will show the president as he did with Ukraine. Tried to coerce his subordinates to stop an investigation into his misconduct by foreign Special Counsel Mueller. In the second slide, this shows that when the news broke out of the president’s order, the president directed his advisers to falsely deny he had made the order. Professor Gerhardt, are you familiar with the facts relating to these three episodes as described in the Mueller report? Yes or no please.
Prof. Gerhardt: (02:55:04)
Ms. Garcia: (02:55:05)
So accepting the Special Counsel’s evidence as true, is this pattern of conduct obstruction of justice?
Prof. Gerhardt: (02:55:11)
It’s clearly obstruction of justice.
Ms. Garcia: (02:55:14)
Why would you say so sir?
Prof. Gerhardt: (02:55:17)
The obvious object of this activity is to shut down an investigation. In fact the acts of the president, according to these facts, each time is to use the power that he has unique to his office, but in a way that’s going to help him frustrate the investigation.
Ms. Garcia: (02:55:34)
So does this conduct fit within the framers view of impeachable offenses?
Prof. Gerhardt: (02:55:39)
I believe it does. I mean the entire constitution including separation of powers is designed to put limits on how somebody may go about frustrating the activity of another branch.
Ms. Garcia: (02:55:50)
So you would say that this also would be an impeachable offense?
Prof. Gerhardt: (02:55:56)
Ms. Garcia: (02:55:56)
Thank you because I agree with you. The president’s actions and behavior do matter. The president’s obstruction of justice definitely matters. As a former judge and as a member of Congress, I’ve raised my right hand and put my left hand on a Bible more than once and I’ve sworn to uphold the Constitution and laws of this country. This hearing is about that, but it’s also about the core of the heart of our American values. The values of duty, honor, and loyalty. It’s about the rule of law. When the president asked Ukraine for a favor he did so for his personal political gain and not on behalf of the American people.
Ms. Garcia: (02:56:39)
If this is true, he would have betrayed his oath and betrayed his loyalty to this country. A fundamental principle of our democracy is that no one is above the law. Not any one of you professors, not any one of us up here members of Congress, not even the President of the United States. That’s why we should hold him accountable for his actions and that’s why again, thank you for testifying today in helping us walk through all of this to prepare for what may come. Thank you sir. I yield back.
Jerry Nadler: (02:57:15)
General lady yields back. Mr. Neguse.
Mr. Neguse: (02:57:19)
Thank you Mr. Chair and thank you to each of the four witnesses for your testimony today. I’d like to start by talking about intimidation of witnesses. As my colleague, Congresswoman Garcia noted, President Trump has tried to interfere in both the Ukraine investigation and Special Counsel Mueller’s investigation in order to try to cover up his own misconduct. In both the Ukraine investigation and Special Counsel Mueller’s investigation, the president actively discouraged witnesses from cooperating, intimidated witnesses who came forward, and praised those who refused to cooperate. For example, in the Ukraine investigation, the president harassed and intimidated the brave public servants who came forward. He publicly called the whistleblower a “disgrace to our country” and said that his identity should be revealed. He suggested that those involved in the whistleblower complaint should be dealt with in the way that we “used to do” for spies and treason.
Mr. Neguse: (02:58:21)
He called Ambassador Taylor, a former military officer with more than 40 years of public service, “never Trumper” on the same day that he called never Trumpers, “scum.” The president also tweeted accusations about many of the other public servants who testified, including Jennifer Williams and Ambassador Yovanovitch. As we know, the president’s latter tweet happened literally during the ambassador’s testimony in this room in front of the intelligence committee, which she made clear was intimidating. Conversely, we know that the president has praised witnesses who have refused to cooperate.
Mr. Neguse: (02:59:05)
For example, during the Special Counsel’s investigation, the president praised Paul Manafort, his former campaign manager, for not cooperating. You can see the tweet up on the screen to my side. As another telling example, the president initially praised Ambassador Sondland for not cooperating and calling him “a really good man and a great American,” but after Ambassador Sondland testified and confirmed that there was indeed a quid pro quo between the White House visit and the request for investigations, the president claimed that he “hardly knew the ambassador.” Professor Gerhardt, you’ve touched on it previously, but I’d like you to just explain, is the president’s interference in these investigations by intimidating witnesses also the kind of conduct that the framers were worried about and if so, why?
Prof. Gerhardt: (02:59:56)
It’s clearly conduct I think that worried the framers as reflected in the Constitution they’ve given us and the structure of that Constitution. The activities you’re talking about here are consistent with the other pattern of activity we’ve seen with the president either trying to stop investigations either by Mr. Mueller or by Congress as well as to ask witnesses to make false documents about testimony and all those different kinds of activities are not the kinds of activities the framers expected the president to be able to take. They expect a president to be held accountable for it and not just in elections.
Mr. Neguse: (03:00:32)
Professor Turley, you’ve studied the impeachments of President Johnson, President Nixon, President Clinton. Am I right that President Nixon allowed senior White House officials including the White House Council and the White House chief of staff to testify in house impeachment inquiry?
Jonathan Turley: (03:00:47)
Mr. Neguse: (03:00:48)
You’re aware that President Trump has refused to allow his chief of staff or White House Counsel to testify in this inquiry, correct?
Jonathan Turley: (03:00:55)
Yes. Various officials did testify and they are remaining in federal employment.
Mr. Neguse: (03:00:59)
That does not include the White House Counsel nor the white house chief of staff, correct?
Jonathan Turley: (03:01:03)
Mr. Neguse: (03:01:03)
Am I right that President Clinton provided written responses to 81 interrogatories from the house judiciary committee during that impeachment inquiry?
Jonathan Turley: (03:01:12)
I believe that.
Mr. Neguse: (03:01:12)
Sounds about right. You’re aware that President Trump has refused any requests for information submitted by the intelligence committee and this impeachment inquiry?
Jonathan Turley: (03:01:19)
I have, yes.
Mr. Neguse: (03:01:20)
Are you familiar with the letter issued by White House Counsel, Pat Cipollone, on October 8th written on behalf of President Trump and in effect instructing executive branch officials not to testify in this impeachment inquiry?
Jonathan Turley: (03:01:32)
Yes, I am.
Mr. Neguse: (03:01:34)
Am I correct that no president in the history of the Republic before President Trump has ever issued a general order instructing executive branch officials not to testify in an impeachment inquiry?
Jonathan Turley: (03:01:48)
That’s where I’m not sure I can answer that affirmatively. President Nixon in fact went to court over access to information documents and the like and he lost.
Mr. Neguse: (03:01:59)
Well Professor Turley, I would just again refer you back to the history that’s been recounted by each of the distinguished scholars here today because we know as we recount these examples, that President Nixon did in fact allow his chief of staff and his chief counsel to testify and this president has not. We know that President Clinton responded to interrogatories propounded by that impeachment inquiry.
Jonathan Turley: (03:02:20)
I agree with that.
Mr. Neguse: (03:02:21)
This president has not. At the end of the day, this Congress and this committee has an obligation to ensure that the law is enforced. With that I yield back bounce my talk.
Jerry Nadler: (03:02:33)
General yields back. Ms. Mcbath.
Ms. Mcbath: (03:02:36)
Thank you Mr. Chairman and professors I want to thank you so very much for spending his long, arduous hours with us today. Thank you so much for being here. Following up on my colleague, Mr. Neguse’s questions, I’d like to briefly go through one particular example of the president’s witness intimidation that I find truly disturbing and very devastating because I think it’s important that we all truly see what’s going on here. As the slide shows on his July 25th call, President Trump said that former Ambassador Yovanovitch would, and I quote, “Go through some things.” Ambassador Yovanovitch testified about how learning about the president’s statements made her feel.
Speaker 19: (03:03:27)
What did you think when President Trump told President Zelensky and you read that you were going to go through some things?
I didn’t know what to think, but I was very concerned.
Speaker 19: (03:03:40)
What were you concerned about?
She’s going to go through some things. It didn’t sound good. It sounded like a threat.
Speaker 19: (03:03:52)
Did you feel threatened?
Ms. Mcbath: (03:03:59)
As we all witnessed in real time, in the middle of Ambassador Yovanovitch’s live testimony, the president tweeted about the ambassador. Discrediting her service in Somalia and the Ukraine. Ambassador Yovanovitch testified that the president’s tweet was, and I quote, “Very intimidating.” Professor Gerhardt, these attacks on a career public servant are deeply upsetting, but how do they fit into our understanding of whether the president has committed high crimes and misdemeanors, and how do they fit into our broader pattern of behavior by this president to cover up and obstruct his misconduct?
Prof. Gerhardt: (03:04:50)
One way in which it contributes to the obstruction of Congress is that it doesn’t just defame Ambassador Yovanovitch. By every other account she’s been an exemplary public servant. So what he’s suggesting there may not be consistent with what we know as facts, but one of the things that also happens when he sends out something like this. It intimidates everybody else who’s thinking about testifying. Any other public servants that think they should come forward. They are going to worry that they’re going to get punished in some way. They’re going to face things like she’s faced.
Ms. Mcbath: (03:05:31)
That is the woman President Trump has threatened before you and I can assure you, I personally know what it’s like to be unfairly attacked publicly for your sense of duty to America. Ambassador Yovanovitch deserves better. No matter your party, whether you’re a Democrat or Republican. I don’t think any of us thinks that this is okay. It is plainly wrong for the President of the United States to attack a career public servant just for telling the truth as she knows it and I yield back the balance of my time.
Jerry Nadler: (03:06:20)
Gentlelady yields back. Mr. Stanton.
Mr. Stanton: (03:06:21)
Thank you very much, Mr. Chairman and thank you to our outstanding witnesses here today. President Trump has declared that he will not comply with congressional subpoenas. This blanket categorical disregard of the legislative branch began with the president’s refusal to cooperate with regular congressional oversight and has now extended to the House’s constitutional duty on impeachment, the reason why we are here today. This disregard has been on display for the American people. When asked if he would comply with the Don McGahn subpoena, President Trump said, “Well, we’re fighting all the subpoenas.” Now we’ve discussed here today the obstruction of Congress article impeachment against president Nixon. I think I’d like to go a little bit deeper into that discussion and juxtapose it with the President Trump’s actions. Professor Gerhardt, can you elaborate on how President Nixon obstructed Congress and how it compares to President Trump’s actions?
Prof. Gerhardt: (03:07:28)
As I was discussing earlier and including my written statement, President Nixon ultimately refused to comply with four legislative subpoenas. These were zeroing in on the most incriminating evidence he had in his possession. So he refused to comply with those subpoenas, became the basis for the third article, and he resigned a few days later.
Mr. Stanton: (03:07:50)
Professor Feldman, what are the consequences of this unprecedented obstruction of Congress to our democracy?
Noah Feldman: (03:07:57)
For the president to refuse to participate in any way in the House’s constitutional obligation of supervising him to impeach him breaks the constitution. It basically says, nobody can oversee me. Nobody can impeach me. First, I’ll block witnesses from appearing. Then I’ll refuse to participate in any way. Then I’ll say, you don’t have enough evidence to impeach me. Ultimately the effect of that is to guarantee that the president is above the law and can’t be checked. Since we know the framers put impeachment in the Constitution to check the president, if the president can’t be checked, he’s no longer subject to the law.
Mr. Stanton: (03:08:35)
Professor Gerhardt, would you agree that the president’s refusal to comply with congressional subpoenas invokes the framers worst fears and endangers our democracy?
Prof. Gerhardt: (03:08:45)
It does. One way in which to understand that is to put all of his arguments together and then see what the ramifications are. He says he’s entitled not to comply with all subpoenas. He says he’s not subject to any kind of criminal investigation while he’s President of the United States. He’s immune to that. He’s entitled to keep all information confidential from Congress, doesn’t even have to give a reason. Well when you put all those things together, he’s blocked off every way in which to hold himself accountable except for elections. The critical thing to understand here is that is precisely what he was trying to undermine in the Ukraine situation.
Mr. Stanton: (03:09:23)
Professor Karlan, do you have anything to add to that analysis?
Pamela Karlan: (03:09:27)
Oh thanks. I think that’s correct and if I can just say one thing.
Mr. Stanton: (03:09:31)
Pamela Karlan: (03:09:33)
I want to apologize for what I said earlier about the president’s son. It was wrong of me to do that. I wish the president would apologize obviously for the things that he’s done that’s wrong, but I do regret having said that.
Mr. Stanton: (03:09:47)
Thank you Professor. One of the most important questions that every member of this committee must decide is whether we are a nation of laws and not men. It used to be an easy answer. One we could all agree on. When President Nixon defied the law and obstructed justice, he was held to account by people on both sides who knew that for our Republic to endure, we must have fidelity to our country rather than one party or one man. The obstruction we’re looking at today is far worse than President Nixon’s behavior. Future generations will measure us, every single member of this committee, by how we choose to answer that question. I hope we get it right. I yield back.
Jerry Nadler: (03:10:43)
Gentleman yields back. Mr Stuebe.
Mr. Steube: (03:10:45)
Thank you, Mr. Chairman. I’ve only been in Congress since January of this year, and on the very first day of my swearing in, a Democrat in my class called for the impeachment of the president on day one, using much more colorful language than I would ever use. Since then this committee focused on the Mueller report and the Russia collusion theory. We all sat and listened to Mr. Mueller state unequivocally that there was no evidence that the Trump campaign colluded with Russia. So that didn’t work for the Democrats. So they then changed their talking points and move to the obstruction of justice theory, that the president obstructed justice and that fizzled. Then after coordinating with chairman shift staff, a whistleblower filed a complaint based completely on hearsay and overhearing other people that weren’t on a phone call talk about a phone call between two world leaders, which led to the Intel Committee, so-called impeachment inquiry, which violated all past historical president, denied the president basic due process rights and fundamental fairness by conducting this so-called inquiry in secret.
Mr. Steube: (03:11:44)
Without the minority’s ability to call witnesses and denied the president the ability to have his lawyers cross-examined witnesses. A right afforded to President Clinton and every defendant in our justice system including rapists and murderers. The Republicans on this committee have repeatedly requested all evidence collected by the Intel Committee. As we sit here today, we still don’t have the underlying evidence that we’ve been requesting. Again, a right afforded every criminal defendant in the United States. So instead we sit here getting lectures from law professors about their opinions. Their opinions, not facts. I guess the Democrats needed a constitutional law refresher course. The Republicans don’t. Mr. Chairman, you have acknowledged, and I quote, the House’s “power of impeachment demands a rigorous level of due process.” Due process means the right to confront witnesses against you, to call your own witnesses, and to have the assistance of counsel.
Mr. Steube: (03:12:39)
Those are your words, Mr. Chairman, not mine. What are you afraid of? Let the minority call witnesses. Let the president call witnesses. Clinton alone called 14 witnesses to testify. Let the president’s counsel cross examine the whistleblower. Let the president’s counsel cross examine the Intel staff who colluded with the whistleblower. In your own words, those are the rights that should be afforded to the president. Rights every criminal defendant is afforded, even terrorists in Iraq were afforded more due process than you and the democratic majority have afforded to the president. I know because I served in Iraq and I prosecuted terrorists in Iraq and we provided terrorist Iraq more rights and due process in the central criminal court of Iraq than you and Chairman Schiff have afforded the President of the United States. No collusion, no obstruction, no quid pro quo. No evidence of bribery except opinion. No evidence of treason.
Mr. Steube: (03:13:32)
No evidence of high crime or misdemeanors. We have a bunch of opinions from partisan Democrats who have stated from day one that they want to impeach the president and not on this theory, but on multiple other different theories. The American people are smarter in your ABCs of impeachment that you’ve had on the screen that were laid out today and it’s extremely demonstrative of your lack of evidence giving you called law professors to give their opinions and not fact witnesses to give their testimony today to be cross-examined and the rights afforded to the President of the United States.
Mr. Steube: (03:14:04)
Mr. Chairman, when can we anticipate that you will choose a date for the minority day of hearings? Mr. Chairman, I’m asking you a question. When can we anticipate that you will choose a date for the minority day of hearings?
Jerry Nadler: (03:14:18)
The gentleman is recognized for the purpose of questioning the witnesses, not for colloquy with colleagues.
Mr. Steube: (03:14:25)
Well then I’ll do that after my time. I yield the remainder of my time to Mr. Ratcliff.
John Ratcliffe: (03:14:29)
I thank my colleague from Florida for yielding. Professor Turley since we last talked based on questioning from my colleagues across the aisle, it does in fact appear that the Democrats do intend to pursue articles of impeachment for obstruction of justice based on the Mueller report. I asked you a question about that. You didn’t really get a chance to give a complete answer in your statement today. You make this statement. I believe an obstruction claim based on the Mueller report would be at odds with the record and the controlling law. The use of an obstruction theory from the Mueller report would be unsupportable in the House and unsustainable in the Senate. Do you remember writing that?
Jonathan Turley: (03:15:12)
Yes, I do.
John Ratcliffe: (03:15:13)
Why did you write that?
Jonathan Turley: (03:15:14)
I think it’s true. The fact is that this was reviewed by main justice. The Special Counsel did not reach a conclusion on obstruction. He should have. I think that his justification quite frankly, was a bit absurd on not reaching a conclusion, but the deputy attorney general did and they came to the right conclusion. I don’t think this is a real case for obstruction, but then this body would be impeaching the president on the basis of the inverse conclusion. I don’t believe it’d be appropriate.
Jerry Nadler: (03:15:48)
Gentleman’s time is expired. Ms. Dean.
Ms. Dean: (03:15:51)
Thank you, Mr. Chairman. Words matter. In my earlier life professors, I was a professor of writing. I taught my students to be careful and clear about what they put to paper. That is a lesson that the framers of our Constitution understood far better than anyone. They were laying the foundation for a new form of government, one that enshrines democratic principles and protects against those who would seek to undermine them. The Constitution explicitly lays out that a president may be impeached for treason, bribery, high crimes, and misdemeanors. We’ve heard a lot of words today. Foreign interference, bribery, obstruction of justice. Professors I’d like to go through the president’s conduct and the public harms we have discussed today and ask if they would fit into what the forefathers contemplated when crafting those words of the impeachment clause. Professor Karlan, I’d like to ask you about the foreign interference in elections. As Americans, we can agree foreign interference, foreign influence erodes the integrity of our elections and as you said so plainly, it makes us less free.
Ms. Dean: (03:17:02)
Yet on July 25th, 2019 the president coerced Ukrainian president Zelensky to announce an investigation into his political rival. Trump’s political rival, which was corroborated by multiple witnesses throughout the intelligence committee hearings. Professor Karlan, can you explain for the American people in your opinion whether the framers considered solicitation of foreign interference and would they have considered it a high crime or misdemeanor and does the president’s conduct rise to that level?
Pamela Karlan: (03:17:34)
The framers of our constitution would have considered it abhorrent, would have considered it the essence of a high crime or misdemeanor for a president to invite in foreign influence either in deciding whether he will be reelected or deciding who his successor would be.
Ms. Dean: (03:17:50)
Thank you. Professor Feldman, I’d like to talk to you about bribery. During the course of the intelligence committee hearings, multiple witness gave sworn unrebutted testimony that the president withheld nearly $400 million in congressionally approved-
Ms. Dean: (03:18:03)
Held nearly $400 million in congressionally approved aid on the condition that Russia, excuse me, that Ukraine announced investigations into his chief political adversary. Professor, in your opinion, given those facts and the framers’ specific concerns, would you describe the president’s behavior here in the use of his public office for a private benefit as rising to those levels?
Noah Feldman: (03:18:25)
The framers considered, as you said, bribery to consist on bribery under the constitution to consist of the president abusing his office corruptly for personal gain. If this House determines and if this committee determines that the president was in fact seeking personal gain in seeking the investigations that he asked for, then that would constitute bribery under the Constitution.
Ms. Dean: (03:18:50)
Thank you. Professor Gerhardt, I’d like to ask you about obstruction of justice. The president has categorically refused to produce any documents responsive to congressional subpoenas, attacked and intimidated perspective and actual witnesses including career and civil military, excuse me, military and civil servants as discussed here, like Ambassador Yovanovitch, Lieutenant Colonel Vindman, Ambassador Taylor, Jennifer Williams, and others, and he directed all current and former administration witnesses to defy congressional subpoenas. Professor, based on that set of facts. Does this conduct meet the threshold for obstruction of justice as envisioned in the Constitution?
Prof. Gerhardt: (03:19:29)
Yes ma’am. I believe it does. I remember when I was here 21 years ago along with Professor Turley testifying before differently constituted committee on a very serious question regarding impeachment and I remember a number of law professors very eloquently talking about President Clinton’s misconduct as an attack on the judicial system and that’s what you just described to me.
Ms. Dean: (03:19:51)
Thank you. And thank you professors, all of you, all four of you. What you did today is you brought part of our constitution to life and I thank you for that. You’ve shown what the framers were mindful of when they wrote the impeachment clause of our constitution. They chose their words and their words matter. It was my father, Bob Dean, a terrific dad and a talented writer who instilled in me and my brothers and sister a love of language. He taught us our words matter. The truth matters.
Ms. Dean: (03:20:21)
It’s through that lens which I see all of the serious and somber things we’re speaking about today, foreign interference, bribery, obstruction. The framers likely could not have imagined all three concerns embodied in a single leader, but they were concerned enough to craft the remedy, impeachment. The times have found us. I am prayerful for our president, for our country, for ourselves. May we, the people always hold high the decency and promise and ambition of our founding and of the words that matter and of the truth. With that, I yield back, Mr. Chairman.
Jerry Nadler: (03:20:56)
Gentle lady yields back. Miss Mucarsel-Powell.
Ms. Powell: (03:20:59)
Thank you and thank you professors for your time today. It’s been a long day. I want to tell you, I did not have the privilege of being born into this country. As an immigrant, when I became a citizen to this great nation, I took an oath to protect and defend the Constitution from all foreign and domestic enemies and I had the fortune of taking that oath once again when I became a member of Congress. And that includes the responsibility to protect our nation from continuing threats from a president. Any president.
Ms. Powell: (03:21:32)
You testified that the president’s actions are a continuing risk to our nation and democracy, meaning that this is not a one time problem. There is a pattern of behavior by the president that is putting at risk fair and free elections, and I think that we are here today because the American people deserve to know whether we need to remove the president because of it.
Ms. Powell: (03:21:55)
During the Nixon impeachment, the judiciary committee said, “The purpose of impeachment is not personal punishment. It’s function is primarily to maintain constitutional government.” Professor Karlan, to me that means that impeachment should be used when we must protect our American democracy. It is reserved for offenses that present a continuing risk to our democracy. Is that correct?
Pamela Karlan: (03:22:25)
Yes, it is.
Ms. Powell: (03:22:26)
Thank you. And I want to show you an example of what the president said just one week after the transcript of the July 25th call was released. When a reporter asked the president what he wanted from President Zelensky and he responded with this.
President Trump: (03:22:41)
Well, I would think that if they were honest about it, they’d start a major investigation into the Bidens. It’s a very simple answer. They should investigate the Bidens, because how does a company that’s newly formed and all these companies, if you look at, and by the way, likewise China just started an investigation into the Bidens, because what happened in China is just about as bad as what happened with Ukraine.
Ms. Powell: (03:23:12)
So we’ve heard today conflicting dialogue from both sides. And I just want to ask Mr. Feldman, is this clear evidence from a president asking from for a foreign government to interfere in our elections?
Noah Feldman: (03:23:31)
Congresswoman, I’m here for the Constitution. We’re here for the Constitution. And when the President of the United States asks for assistance from a foreign power to distort our elections for his personal advantage, that constitutes an abusive office and it counts as a high crime and misdemeanor. And that’s what the Constitution is here to protect us against.
Ms. Powell: (03:23:53)
Thank you. And Professor Karlan, are the president’s actions a continuing risk that the framers intended impeachment to be used for?
Pamela Karlan: (03:24:03)
Yes. This takes us back to the quotation from William Davey that we’ve all used several times in our testimony, which is a president, without impeachment, a president will do anything to get reelected.
Ms. Powell: (03:24:16)
Thank you and I want to show you one more example from the president’s chief of staff, when asked about the president, he meant of the Ukrainian president,
Speaker 20: (03:24:24)
Let’s be clear, what you just described is a quid pro quo. It is funding will not flow unless the investigation is into the democratic server happens as well.
Mick Mulvaney: (03:24:35)
We do that all the time with foreign policy. When McKinney said yesterday that he was really upset with the political influence in foreign policy, that was one of the reasons he was so upset about this. And I have news for everybody. Get over it. There’s going to be political influence in foreign policy.
Ms. Powell: (03:24:53)
Pamela Karlan: (03:24:55)
I think that Mr. Mulvaney is conflating or confusing two different notions of politics. Yes, there is political influence on our foreign affairs. Because President Trump won the election in 2016 we’ve exited Climate Accords. We’ve taken a different position on NATO than we would have taken had his opponent won. But that’s different than saying that partisan politics, in the sense of electoral manipulation, is something that we need to get over or get used to. If we get over that or we get used to that, we will cease to become the democracy that we are right now.
Ms. Powell: (03:25:31)
Thank you. And I think that that is our greatest fear and threat and I don’t think that anyone is above the law. The constitution establishes that this type of behavior cannot be tolerated from any president, not now, not in the future. And I yield back.
Jerry Nadler: (03:25:48)
Gentle lady yields back. That concludes.
Speaker 21: (03:25:56)
Jerry Nadler: (03:25:56)
Who have I missed?
Speaker 21: (03:25:56)
Jerry Nadler: (03:25:57)
I’m sorry, Miss Escobar. I had her checked off as [inaudible 03:25:59]. Miss Escobar is recognized.
Ms. Escobar: (03:26:02)
Thank you Chairman. Professors, thank you so much for your testimony and time today. Many facts, including the president’s own words in that famous phone call, have been laid out before our very eyes and ears for months, despite the president’s repeated efforts at a coverup. But it appears that some have chosen to ignore those facts. What we’ve seen today from those who choose to turn a blind eye is not a defense of the president’s actions because frankly those offenses are indefensible. Instead we’ve seen them attack the process and attempt to impugn your integrity for that. I’m sorry.
Ms. Escobar: (03:26:39)
Now to my questions. Some have a pint that instead of considering impeachment, we should just let this pass and allow the people to decide what to do next or what to do about the president’s behavior in the next election. The framers of our specifically considered whether to just use elections and not have impeachment and rejected that notion. One statement from the framers really stuck with me and it’s up on the screen. George Mason asked, “Shall the man who has practiced corruption and by that means procured his appointment in the first instance be suffered to escape punishment by repeating his guilt?”
Ms. Escobar: (03:27:19)
Professor Feldman, I have two questions for you. Briefly, can you please explain why the framers decided that a corrupt executive could not be solved through elections? And can you tell us why impeachment is the appropriate option at this point, considering all the evidence Americans have seen and heard rather than just letting this be decided in the next election?
Noah Feldman: (03:27:43)
The framers understood human motivation extremely well and they knew that a president would have a great motive to corrupt the electoral process to get reelected and that’s exactly why they though