Jan 23, 2020
Jerry Nadler Impeachment Trial Argument Transcript – Day 2 of Impeachment Arguments
Rep. Jerry Nadler, one of the Donald Trump Senate Trial impeachment managers, stated that the impeachment articles are “overwhelmingly supported” by evidence. Read the full transcript his full argument on Day 2 of trial arguments on January 23, 2020.
Jerry Nadler: (00:00)
Good morning Mr. Chief Justice, senators, my fellow house managers and counsel for the president. This is the third day of a solemn occasion for the American people. The articles of impeachment against president Trump rank among the most serious charges ever brought against the president. And as our recital of the facts indicated, the articles are overwhelmingly supported by the evidence amassed by the House. Not withstanding, the president’s complete stonewalling is attempted to block all witnesses and all documents from the United States Congress. The first article of impeachment charges the president with abuse of power. President Trump used the powers of his office to solicit a foreign nation to interfere in our elections for his own personal benefit. Note that the act of solicitation itself, just the ask, constitutes an abuse of power, but president Trump went further. In order to secure his favor from Ukraine, he withheld two official acts of immense value.
Jerry Nadler: (01:15)
First, he withheld the release of $391 million in vital military assistance appropriated by Congress in a bipartisan basis, which Ukraine needed to fight Russian aggression. And second, president Trump withheld a long sought after White House meeting, which would confirm to the world that America stands behind Ukraine in it’s ongoing struggle. The president’s conduct is wrong. It is illegal, it is dangerous, and it captures the worst fears of our founders and the framers of the constitution. Since president George Washington took office in 1789, no president has abused his power in this way. Let me say that again. No president has ever used his office to compel a foreign nation to help him cheat in our elections. Prior presidents would be shocked to the core by such conduct and rightly so.
Jerry Nadler: (02:22)
Now because president Trump has largely failed to convince the country that his conduct was remotely acceptable, he has adopted a fallback position. He argues that even if we disapprove of his misconduct, we cannot remove him for it. Frankly, that argument is itself terrifying. It confirms that this president sees no limits on his power or on his ability to use his public office for a private gain. And of course, the president also believes that he can use his power to cover up his crimes.
Jerry Nadler: (02:59)
That leads me to the second article of impeachment, which charges that the president categorically, indiscriminately and unlawfully obstructed our inquiry, the Congressional inquiry, into his conduct. This presidential stonewalling of Congress is unprecedented in the 238 year history of our constitutional republic. It puts even president Nixon to shame. Taken together, the articles and the evidence conclusively establish that president Trump has placed his own personal political interests first. He has placed them above our national security, above our free and fair elections, and above our system of checks and balances. This conduct is not America first, it is Donald Trump first. Donald Trump swore an oath to faithfully execute the laws. That means putting the nation’s interests above his own, and the president has repeatedly, flagrantly violated his oath.
Michael G.: (04:07)
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.
Jerry Nadler: (04:27)
All of the legal experts who testified before the House Judiciary Committee, those invited by the Democrats and those invited by the Republicans, all agreed that the conduct we have charged constitutes high crimes and misdemeanors. Professor Michael Gerhardt, the author of six books and the only joint witness when the House considered president Clinton’s case, put it simply. If what we’re talking about is not impeachable, then nothing is impeachable. Professor Jonathan Turley, called by the Republicans as a witness, agreed that the articles charge an offense that is impeachable. In his written testimony, he stated, “The use of military aid for a quid pro quo to investigate one’s political opponent if proven, can be an impeachable offense.” Thus far, we have presented the core factual narrative. None of that record can be seriously disputed and none of it will be disputed. We can predict what the president’s lawyers will say in the next few days.
Jerry Nadler: (05:37)
I urge you senators to listen to it carefully. You will hear accusations and name calling. You will hear complaints about the process in the House and the motives of the managers. You will hear that this all comes down to a phone call that was perfect as if you had not just seen evidence of a month’s long government-wide effort to extort a foreign government. But you will not hear a refutation of the evidence. You will not hear testimony to refute the testimony you have seen. Indeed, if the president had any exculpatory witnesses, even a single one, he would be demanding their appearance here instead of urging you not to permit additional witnesses to testify.
Jerry Nadler: (06:23)
So now let me offer a preview of the path ahead. First, we will examine the law of impeachable offenses with a focus on abuse of power. That will be the subject of my presentation. Then my colleagues will apply the law to the facts. They will demonstrate that the president has unquestionably committed the high crimes and misdemeanors outlined in the first article of impeachment. Once those presentations are concluded, we will take the same approach to demonstrating president Trump’s obstruction of Congress, the second article of impeachment. We will begin by stating the law then we will review the facts and then we will apply the law to the facts proving that president Trump is guilty on the second article of impeachment as well.
Jerry Nadler: (07:13)
With that roadmap to guide us, I will begin by walking through the law of abuse of power. Here I’ll start by defining the phrase in the constitution, high crimes and misdemeanors. When the framers selected this term, they meant it to capture, as George Mason put it, all manner of great and dangerous offenses against the nation. And in contemporary terms, the framers had three specific offenses in mind, abusive power, betrayal of the nation through foreign entanglements and corruption of elections. You can think of these as the ABCs of high crimes and misdemeanors, abuse, betrayal and corruption. The framers believed that any one of these standing alone justified removal from office. Professor Noah Feldman of Harvard Law School explained this well before the House Judiciary Committee. Here’s his explanation of why the framers created the impeachment power.
Noah Feldman: (08:15)
The framers provided for the impeachment of the president because they feared that the president might abuse the power of his office for a personal benefit to corrupt the electoral process and ensure his reelection, or to subvert the national security of the United States.
Jerry Nadler: (08:34)
That is the standard as described by professor Feldman. It is correct. And of course, where all three of these concerns appear at once, abuse, betrayal and corruption, that is where we have the strongest possible case for removing a president from office. Later on, we will apply this rule to the facts. Abuse, we will show that president Trump abused his power when he used his office to solicit and pressure Ukraine to meddle in our elections for his personal gain. Betrayal, we will show that he betrayed vital national interests, specifically our national security, by withholding diplomatic support and military aid from Ukraine even as it faced armed Russian aggression.
Jerry Nadler: (09:18)
Corruption, president Trump’s intent was to corrupt our elections to his personal political benefit. He put his personal interest in retaining power above free and fair elections and above the principle that Americans must govern themselves without interference from abroad. Article one, those charges are high crime and misdemeanor that blends abuse of power, betrayal of the nation, and corruption in elections into a single unforgivable scheme. That is why this president must be removed from office, especially before he continues his effort to corrupt our next election. The charges set forth in the first article of impeachment are firmly grounded in the constitution of the United States. Simply stated, impeachment is the constitution’s final answer to a president who mistakes himself for a king. The framers had risked their freedom and their lives to escape monarchy. Together, they resolved to build a nation committed to democracy and the rule of law, a beacon to the world in an age of aristocracy. In the United States of America, we the people, would be sovereign.
Jerry Nadler: (10:34)
We would choose our leaders and hold them accountable for how they exercise power on our behalf. In writing our constitution, the framers recognized that we needed a chief executive who could lead the nation with efficiency, energy and dispatch. So they created a powerful presidency, invested with immense public trust, but this solution created a different problem. The framers were not naive. They knew that power corrupts. They knew that republics cannot flourish and that people cannot live free under a corrupt leader. They foresaw that a president faithful only to himself would endanger every American. So the framers built guardrails to ensure that the American people would remain free and to ensure that out of control presidents would not destroy everything that they sought to build. They imposed elections every four years to ensure accountability. They banned the president from profiting off his office. They divided the powers of the federal government across three branches and they required the president to swear an oath to faithfully execute the laws.
Jerry Nadler: (11:42)
To the framers, the concept of faithful execution was profoundly important. It prohibited the president from exercising power in bad faith or with corrupt intent, and thus ensured that the president would put the American people first, not himself. A few framers would have stopped there. This minority feared vesting any branch of government with the power to remove a president from office. They would have relied on elections alone to address rogue presidents, but that view was decisively rejected at the constitutional convention. Convening in the shadow of rebellion and revolution, the framers would not deny the nation an escape from presidents who deemed themselves above the law. Instead, they adopted the power of impeachment. In so doing, they offered a clear answer to George Mason’s question, shall any man be above justice? As Mason himself explained, some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose as well as by the corruptibility of the man chosen.
Jerry Nadler: (12:53)
Unlike in Britain, the president would answer personally to Congress and thus to the nation for any serious wrongdoing. But this decision raised the question, what conduct would justify impeachment and removal? As careful students of history, the framers knew that threats to democracy can take many forms. They feared would be monarchs, but also warned against fake populists, charismatic demagogues, and corrupt kleptocrats. In describing the kind of leader who might menace the nation, Alexander Hamilton offered an especially striking portrait. Mr Schiff read this portrait in his introductory remarks and it bears reputation. “When a man unprincipled in private life, desperate in his fortune, bold in his temper, known to have scoffed in private at the principles of liberty, when such a man is seen to mount the hobby horse of popularity, to join in the cry of danger to liberty, to take every opportunity of embarrassing the general government and bringing it under suspicion, to flatter and fall in with all the nonsense of the zealots of the day, 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: (14:17)
Hamilton was a wise man. He foresaw dangers far ahead of his time. Given the many threats they had to anticipate, the frames considered extremely broad grounds for removing presidents. For example, they debated setting the bar at maladministration to allow removal for run-of-the-mill policy disagreements between Congress and the president. They also considered very narrow grounds, strictly limiting impeachment to treason and bribery. Ultimately, they struck a balance. They did not want presidents removed for ordinary political or policy disagreements, but they intended impeachment to reach the full spectrum of presidential misconduct that might threaten the constitution. And they intended our constitution to endure for the ages. So they adopted a standard meant, as Mason put it, to capture all manner of great and dangerous offenses incompatible with the constitution. This standard, borrowed from the British parliament, was high crimes and misdemeanors.
Jerry Nadler: (15:24)
In England, the standard was understood to capture offenses against the constitutional system itself. That is confirmed by the use of the word high as well as by parliamentary practice. From 1376 to 1787, the House of Commons impeached officials on a few general grounds, mainly consisting of abusive power, betrayal of national security and foreign policy, corruption, treason, bribery and disregarding the powers of parliament. The phrase high crimes and misdemeanors thus covered offenses against the nation itself. In other words, crimes against the British constitution. As scholars have shown the same understanding prevailed on this side of the Atlantic. In the colonial period and under newly ratified state constitutions, most impeachments targeted abusive power, betrayal of the revolutionary cause, corruption, treason and bribery. These experiences were well known to the framers of the constitution.
Jerry Nadler: (16:25)
History thus teaches that high crimes and misdemeanors referred mainly to acts committed by officials using their power of privileges that inflicted grave harm on society. Such great and dangerous offenses included treason, bribery, abusive power, betrayal of the nation and corruption of office and they were unified by a clear theme. Officials who abused, abandoned, or sought to benefit personally from their public trust and who threatened the rule of law if left in power, faced impeachment and removal. Abuse, betrayal, corruption. This is exactly the understanding that the framers incorporated into the constitution. As Supreme Court justice, Robert Jackson, wisely observed, the purpose of the constitution was not only to grant power, but to keep it from getting out of hand. Nor is that truer than in the presidency. As the framers created the formidable chief executive, they made clear that impeachment is justified for serious abuse of power. James Madison stated that impeachment is necessary because the president “might pervert his administration into a scheme of oppression.”
Jerry Nadler: (17:47)
Hamilton set the standard for removal at an abuse or violation of some public trust. And then Massachusetts Reverend Samuel Stillman asked, with such a prospect of impeachment, who will dare to abuse the powers vested in him by the people? Time and again, Americans who wrote and ratified the constitution confirmed that presidents may be impeached for abusing the power entrusted to them. To the framing generation moreover, abusive power was a well understood offense. It took two basic forms. The first occurred when someone exercised power in ways far beyond what the law allowed or in ways that destroyed checks on their own authority. The second occurred when an official exercised power to obtain an improper personal benefit while ignoring or injuring the national interest. In other words, the president may commit an impeachable abusive power in two different ways. By engaging in clearly forbidden acts or by taking actions that are allowed, but for reasons that are not allowed. For instance, to obtain corrupted private benefits. Let me unpack that idea starting with the first category.
Jerry Nadler: (19:03)
Let me unpack that idea. Starting with the first category, conduct clearly inconsistent with the law, including the law of checks and balances. The generation that rebelled against George III knew what absolute power looked like. It was no abstraction to them. They had a different idea in mind when they organized our government. Most significantly, they placed the President under the law, not above it. That means the President may exercise only the powers vested in him by the Constitution. He must also respect the legal limits on the exercise of those powers. A president who egregiously refuses to follow these restrictions by engaging in wrongful conduct may be subject to impeachment for abuse of power.
Jerry Nadler: (19:51)
Two American impeachment inquiries have involved claims that a president grossly violated the Constitution’s separation of powers. The first was in 1868, when the House impeached President Andrew Johnson, who had succeeded Abraham Lincoln after his assassination at Ford’s Theater. In firing the Secretary of War, President Johnson allegedly violated the Tenure of Office Act, which restricted the President’s power to remove cabinet members during the term of the President who had appointed them. The House of Representatives approved the articles charging him with conduct forbidden by law. That is an action that is an abuse of power on its face. Ultimately, the Senate acquitted president Johnson by one vote. This was partly because there was a strong argument that the Tenure of Office Act which President Johnson was charged with violating was itself unconstitutional, a position the Supreme Court later accepted. Of course, historians have also noted that a key senator appears to have changed his vote at the last minute in exchange for promises of special treatment by President Johnson. So perhaps that acquittal means a little less than meets the eye. In any event, just over a hundred years later, the House Judiciary Committee accused the second chief executive of abusing his power in a manner egregiously inconsistent with the law.
Jerry Nadler: (21:13)
Now, the committee charged President Nixon with obstruction of Congress based on his meritless assertion of executive privilege to cover up key White House tape recordings. We will have more to say about the obstruction charge in a moment, but the Nixon case also exemplifies the second way a president can abuse his power. President Nixon faced two more articles of impeachment. Both of these articles charged him with abusing the powers of his office with corrupt intent. One focused on his abuse of power to obstruct law enforcement; the other targeted his abuse of power to target political opponents. Each article enumerated specific abuses by President Nixon, many of which involve the wrongful corrupt exercise of presidential power, and many of which were likely not statutory crimes. In explaining its second article, the House Judiciary Committee stated that President Nixon’s conduct was undertaken for his personal political advantage and not in furtherance of any valid national policy objective.
Jerry Nadler: (22:20)
That should sound familiar to everyone here. It reflects a standard I’ve already articulated: the exercise of official power to corruptly obtain a personal benefit while ignoring or injuring the national interest. To be sure, all presidents account to some extent for how their decisions in office may affect their political prospects. The Constitution does not forbid that. Elected officials can and should care about how voters will react to their decisions. They will often care about whether their decisions make it more likely that they will be reelected. But there is a difference, a difference that matters, between political calculus and outright corruption.
Jerry Nadler: (23:05)
Some uses of presidential power are so outrageous, so obviously improper, that, if they are undertaken for a president’s own personal gain with injury or indifference to core national interests, then they are obviously high crimes and misdemeanors. Otherwise, even the most egregious wrongdoing could be justified as disagreement over policy or politics, and corruption that would have shocked the framers, that they expressly sought to prohibit, would overcome the protections they established for our benefit.
Jerry Nadler: (23:39)
And there should be nothing surprising about impeaching a president for using his power with corrupt motives. The House and Senate have confirmed this point in prior impeachments. More important, the Constitution itself says that we can do so. To start, the Constitution requires that the President faithfully execute the law. A president who acts with corrupt motives, putting himself above country, has acted faithlessly, not faithfully executed the laws. Moreover, the two impeachable offenses that the Constitution enumerates, treason and bribery, each required proof of the President’s mental state. For treason, he must’ve acted with a disloyal mind according to the Supreme Court, and it is well established that the elements of bribery include corrupt motives.
Jerry Nadler: (24:34)
In sum, to the framers, it was dangerous for officials to exceed their Constitutional power, but it was equally dangerous, perhaps more so, for officials to use their power with corrupt, nefarious motives, thus perverting public trust for private gain. Abuse of power is clearly an impeachable offense under Constitution. To be honest, this should not be a controversial statement. I find it amazing that the President rejects it. Yet, he does. He insists that there is no such thing as impeachable abuse of power. This position is dead wrong.
Jerry Nadler: (25:16)
All prior impeachments considered of high office have always included abuse of power. All of the experts who testified before the House Judiciary Committee, including those called by the Republicans, agreed that abuse of power is a high crime and misdemeanor. Here is testimony from Professor Pam Karlan of Stanford Law School, joined by Professor Gerhardt.
Speaker 1: (25:44)
Do scholars of impeachment generally agree that abuse of power is an impeachable offense?
Prof. Karlan: (25:51)
Yes, they do.
Speaker 1: (25:52)
Professor Gerhardt, do you agree that abuse of power is impeachable?
Prof. Gerhardt: (25:57)
Jerry Nadler: (25:59)
Professor Turley, who testified at Republican invitation echoed that view. In fact, he not only agreed, but he, quote, “stressed that it is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power.”
Jerry Nadler: (26:17)
Professor Turley is hardly the only legal expert to take that view. Another who comes to mind is Professor Alan Dershowitz, at least Alan Dershowitz in 1998. Back then, here is what he had to say about impeachment for abuse of power.
Prof Dershowitz: (26:41)
So certainly, it doesn’t have to be a crime. if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.
Jerry Nadler: (26:55)
But we need not look to 1998 to find one of President Trump’s key allies espousing this view. Consider the comments of our current Attorney General, William Barr, a man known for his extraordinarily expansive view of executive power. In Attorney General Barr’s view, as expressed about 18 months ago, presidents cannot be indicted or criminally investigated, but that’s okay because they can be impeached. That’s the safeguard. And then in an impeachment, Attorney General Barr added, the President is answerable for any abuses of discretion and may be held accountable under law for his misdeeds in office.
Jerry Nadler: (27:42)
In other words, Attorney General Barr, who believes, along with the Office of Legal Counsel, that a president may not be indicted, believes that that’s okay. We don’t need that safeguard against a president who would commit abuses of power. It’s okay because he can be impeached. That’s the safeguard for abuses of discretion and for his misdeeds in office.
Jerry Nadler: (28:10)
More recently, a group of the nation’s leading Constitutional scholars, ranging across the ideological spectrum from Harvard Law Professor Larry Tribe to former Ronald Reagan Solicitor General Charles Freed issued a statement affirming that, quote, “abuse of power counts as an instance of impeachable high crimes and misdemeanors under the Constitution.” They added, “That was clearly the view of the Constitution’s framers.” I could go on, but you get the point.
Jerry Nadler: (28:42)
Everyone except President Trump and his lawyers agree that presidents can be impeached for abuse of power. The President’s position amounts to nothing but self-serving Constitutional nonsense, and it is dangerous nonsense, at that. A president who sees no limit on his power manifestly threatens the Republic. The Constitution always matches power with constraint. That is true even if power is vested in the chief executive. Nobody is entitled to wield power under the Constitution if they ignore that or betray the nation’s interests to advance their own. President Nixon was wrong in asserting that, quote, “When the president does it, that means it is not illegal.” And president Trump was equally wrong when he declared that he had the power, “the right to do whatever I want as president.” Under the Constitution, he is subject to impeachment and removal for abuse of power. And as we will prove, that is exactly what must happen here.
Jerry Nadler: (29:49)
Of course, President Trump’s abuse of power, as charged in the first article of impeachment and supported by a mountain of evidence, is aggravated by another concern at the heart of the Constitution’s impeachment clause: betrayal. The founders of our country were not fearful men. When they wrote our Constitution, they had only recently won a bloody war for independence. But as they looked outward from their new nation, they saw Kings scheming for power, promising fabulous wealth to spies and deserters. The United States could be enmeshed in such conspiracies. “Foreign powers,” warned Elbridge Gerry, “will intermingle in our affairs and spare no expense to influence them.” The young Republic might not survive a president who schemed with other nations, entangling himself in secret deals that harmed our democracy.
Jerry Nadler: (30:44)
That reality loomed over the impeachment debate in Philadelphia. Explaining why the Constitution required an impeachment option, Madison argued that a president might betray his trust to foreign powers. To be sure, the framers did not intend impeachment for genuine good faith disagreements between the President and Congress over matters of diplomacy, but they were explicit that betrayal of the nation through plots with foreign powers must result in removal from office. And no such betrayal scared them more than foreign interference in our democracy.
Jerry Nadler: (31:22)
In his farewell address, George Washington warned Americans, quote, “to be constantly awake, since history and experience proved that foreign influence is one of the most baneful foes of Republican government.” Close quote. And in a letter to Thomas Jefferson, John Adams wrote, “You are apprehensive of foreign interference, foreign intrigue, influence. So am I. But as often as elections happen, the danger of foreign influence recurs.”
Jerry Nadler: (31:55)
The framers never suggested that the President’s role in foreign affairs should prevent Congress from impeaching him for treachery in his dealings. Case in point, they wrote a Constitution that gives Congress extensive responsibility over foreign affairs … Congress … including the power to declare war, regulate foreign commerce, establish uniform rule of naturalization, and define offenses against the law of nations. Contrary to the claims you heard the other day, that the President has plenary authority in foreign affairs and there is nothing Congress can do about it, the Supreme Court has stated that Constitutional authority over the conduct of the foreign relations of our government is shared between the executive and legislative branches.
Jerry Nadler: (32:42)
Or to quote another Supreme Court case, “The executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.” “In these realms,” Justice Jackson wrote, “the Constitution enjoins upon its branches separateness, but interdependence; autonomy, but reciprocity.” Where the President betrays our national security and foreign policy interests for his own personal gain, he is unquestionably subject to impeachment and removal.
Jerry Nadler: (33:16)
The same is true of a different concern raised by the framers, the use of presidential power to corrupt the elections and the office of the presidency. The framers were no strangers to corruption. They understood that corruption had broken Rome, debased Britain, and threatened America. They saw no shortage of threats to the Republic, and fought valiantly to guard against them. But as one scholar writes, the big fear underlying all the small fears was whether they’d be able to control corruption.
Jerry Nadler: (33:51)
So the framers attempted to build a government in which officials would not use public power for personal benefits, disregarding the public good in pursuit of their own advancement. This principle applied with special force to the presidency. As Madison emphasized, because the presidency was to be administered by a single man, his corruption might be fatal to the Republic. Indeed, no fewer than four delegates to the Constitutional Convention … Madison plus Morris, Mason, and Randolph … listed corruption as a central reason why presidents must be subject to impeachment and removal from office. Impeachment was seen as especially necessary for presidential conduct corrupting our system of political self-government. The framers foresaw and feared that a president might someday place his personal interest in reelection above our abiding commitment to democracy. Such a president, in their view, would need to be removed from office. Professor Feldman made this point in his testimony before the house judiciary committee.
Noah Feldman: (35:02)
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 reelection. That’s in fact why they thought they needed impeachment and why waiting for the next election wasn’t good enough.
Jerry Nadler: (35:26)
Professor Feldman’s testimony is grounded in the records of the Constitutional Convention. There, William Davie warned that a president who abused his office might spare no efforts or means whatever to get himself reelected and thus to escape justice. George Mason built on Davie’s position, asking, “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?” Mason’s concern was straightforward. He feared that presidents would win election by improperly influencing members of the Electoral College.
Jerry Nadler: (36:08)
Governor Morris later echoed this point, urging that the executive ought therefor to be impeachable for corrupting his electors. Taken together, these debates demonstrate an essential point. The framers knew that a president who abused power to manipulate elections presented the greatest possible threat to the Constitution. After all, the beating heart of the framers’ project was a commitment to popular sovereignty. At a time when democratic self-government existed almost nowhere on earth, the framers imagined a society where power flowed from and returned to the people. That is why the President and members of Congress must stand before the public for reelection on fixed terms. And if a president abuses his power to corrupt those elections, he threatens the entire system. As Professor Karlan explained in her testimony …
Prof. Karlan: (37:08)
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. 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. Because, as the Supreme Court declared more than a century ago, voting is preservative of all rights.
Jerry Nadler: (37:48)
Professor Karlan is right. Elections matter. They make our government legitimate, and they protect our freedom. A president who abuses his power in order to kneecap political opponents and spread Russian conspiracy-
Jerry Nadler: (38:03)
To kneecap political opponents and spread Russian conspiracy theories. A president who uses his office to ask for, or even worse to compel, foreign nations to meddle in our elections is a president who attacks the very foundation of our liberty.
Jerry Nadler: (38:18)
That is a grave abuse of power, it is an unprecedented betrayal of the national interest, it is a shocking corruption of the election process, and it is without doubt a crime against the Constitution, warranting, demanding removal from office.
Jerry Nadler: (38:39)
The framers expected that free elections would be the usual means of protecting our freedoms, but they knew that a president who sought foreign assistance in his campaign must be removed from office before he could steal the next election.
Jerry Nadler: (38:56)
In a last ditch legal defense of their client, the president’s lawyers argue that impeachment and removal are subject to statutory crimes or to offenses against established law, that the president cannot be impeached because he has not committed a crime. This view is completely wrong. It has no supporting constitutional text and structure, original meaning, congressional precedence, common sense, or the consensus of credible experts. In other words, it conflicts with every relevant consideration.
Jerry Nadler: (39:32)
Professor Gerhardt succinctly captured the consensus view in his testimony.
Norm Eisen: (39:40)
Professor Gerhardt, does a high crime and misdemeanor require an actual statutory crime?
Michael G.: (39:48)
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, again, at the context and gravity of the misconduct.
Jerry Nadler: (40:06)
This position was echoed by the Republican’s expert witness, Professor Turley, in his written testimony. There he stated that, “It is possible to establish a case for impeachment based on a noncriminal allegation of abuse of power.”
Jerry Nadler: (40:22)
He also stated, “It is clear that high crimes and misdemeanors can encompass non-criminal conduct.” More recently, Professor Turley, again the Republican witness at our hearing, wrote an opinion piece in the Washington Post entitled Where The Trump Defense Goes Too Far. In this piece, he stated that the president’s argument is as politically unwise it as it is constitutionally shortsighted. He added, if successful, it would also come at a considerable cost for the Constitution.
Jerry Nadler: (40:56)
Although I disagree with Professor Turley on many, many issues, here he is clearly right. I might say the same thing of then House Manager Lindsey Graham, who in President Clinton’s trial flatly rejected the notion that impeachable offenses are limited to violations of established law. Here is what he said.
Lindsey Graham: (41:18)
What’s a high crime? How about if an important person hurt somebody of low means? It’s not very scholarly, but I think it’s a truth. I think that’s what they meant by high crimes. Doesn’t even have to be a crime. It’s just when you start using your office and you’re acting in a way that hurts people, you’ve committed a high crime.
Jerry Nadler: (41:49)
There are many reasons why high crimes and misdemeanors are not and cannot be limited to violations of the criminal code. We address them at length in the briefs we have filed and the report of the House Judiciary Committee respecting these articles of impeachment, but I would like to highlight a few especially important considerations. I’ll tick through them quickly.
Jerry Nadler: (42:13)
First, there is the matter of the historical record. The framers could not have meant, could not have meant, to limit impeachment to statutory crimes. Presidents are to be impeached and removed from office for treason, bribery, and other high crimes and misdemeanors, but bribery was not made a statutory crime until 1837.
Jerry Nadler: (42:34)
Second, the president’s position is contradicted by the Constitution’s text. The framers repeatedly referred to crimes, offenses, and punishment, crimes, offenses, and punishment, elsewhere in the Constitution. But here they refer to high crimes. That matters. It matters because the phrase high crimes refers to offenses against the state rather than to work a day crimes. It matters because the phrase high crimes and misdemeanors had a rich history in England, where it had been applied in many, many cases that did not involve crimes under British law.
Jerry Nadler: (43:13)
When the framers added high crimes here, here, but nowhere else in the Constitution, they made a deliberate choice. Any doubt on that score is dispelled by the framers own statements. In Federalist No. 65, Alexander Hamilton explained that impeachable offenses are defined fundamentally by the abuse or violation of some public trust.
Jerry Nadler: (43:37)
A few years later, James Wilson, the constitutional convention delegate, agreed with Hamilton.
Jerry Nadler: (43:43)
Wilson stated, “Impeachments and defenses and defenders impeachable come not within the sphere of ordinary jurisprudence. They are founded on different principles, are governed by different maxims, and are directed to different objects.”
Jerry Nadler: (43:59)
George Mason expressed concern that the president might abuse the pardon power to “screen from punishment those who whom he had secretly instigated to commit a crime and thereby prevent discovery of his own guilt.”
Jerry Nadler: (44:13)
Jerry Nadler: (44:15)
James Madison responded directly to Mason’s concern, because Mason’s concern was that the pardon power might be too broad. The president might misuse his broad pardon power to pardon his own co-conspirators and prevent the discovery of own guilt. Madison responded, “If the president be connected in any suspicious manner with any person and there be grounds to believe he will shelter him, the House of Representatives can impeach him. They can remove him if found guilty.”
Jerry Nadler: (44:50)
At the North Carolina ratifying convention, James Iredell, who would go on to serve on the Supreme Court, responded to the same concern. He assured delegates that if the president abuses power with “some corrupt motive or other”, he would be liable to impeachment.
Jerry Nadler: (45:07)
In the early 1800s, this understanding was echoed by Supreme Court Justice Story, who wrote his famous treatise on the Constitution. There he rejected the equation of crimes and impeachable offenses, which he stated must be examined upon very broad and comprehensive principles of public policy and duty.
Jerry Nadler: (45:27)
Later in American history, Chief Justice and former President, William Howard Taft, as well as Chief Justice Charles Evans Hughes, publicly stated that impeachable offenses are not limited to crimes, but instead capture a broader range of misconduct. Indeed, under Chief Justice Taft, the Supreme Court unanimously observed that abuse of the president’s pardon power to frustrate the enforcement of court orders would suggest resort to impeachment.
Jerry Nadler: (45:58)
Now notice, pardon power is unlimited. What they’re saying here is abuse of the pardon power, use of the pardon power for corrupt motive, was impeachable.
Jerry Nadler: (46:08)
If all of that authority is not enough to convince you, there is more. Historians have shown that American colonists before the Revolution and American states after the Revolution, but before 1787, all impeached officials for noncriminal conduct. Over the past two centuries, moreover, a strong majority of the impeachments voted by the House have included one or more allegations that did not charge a violation of criminal law.
Jerry Nadler: (46:38)
Indeed, the Senate has convicted and removed multiple judges on non-criminal grounds. Judge Archibald was removed in 1912 for noncriminal speculation in coal properties. Judge Ritter was removed in 1936 for the noncriminal offense of bringing his court into scandal and disrepute. During Judge Ritter’s case, one of my predecessors as chairman of the House Judiciary Committee stated expressly, “We do not assume the responsibility of proving that the respondent is guilty of a crime as that term is known to criminal jurisprudence.”
Jerry Nadler: (47:15)
What is true for judges is also true for presidents, at least on this point. The House Judiciary Committee approved three articles of impeachment against President Nixon. Each of them encompassed many acts that did not violate federal law. One of the articles, obstruction of Congress, involved no allegations of any legal violation.
Jerry Nadler: (47:35)
It is worth reflecting on why President Nixon was forced to resign. Most Americans are familiar with the story. The House Judiciary Committee approved articles of impeachment in July, 1974. Those articles passed with bipartisan support, although most Republicans stood by President Nixon. Then the smoking tape came out. Within a week, almost everyone who supported the president a week before changed his position, and the president was forced to resign because of what was revealed on the smoking gun tape. Within a week, Senator Goldwater and others from the Senate went to the president and said you won’t have a single vote in the Senate. You must resign or you will be removed from office because of the evidence in the smoking gun tape.
Jerry Nadler: (48:23)
But what was on the smoking gun tape? The smoking gun tape were recordings of President Nixon instructing White House officials to pressure the CIA and the FBI to end the Watergate investigation. No law explicitly prohibited that conversation. It was not in that sense a crime. But President Nixon had abused his power. He had tried to use two government agencies, the FBI and the CIA, for his personal benefit. His impeachment and removal was certain and he announced his resignation within days.
Jerry Nadler: (48:59)
Decades later in President Clinton’s case, the Judiciary Committee reported on the articles of impeachment stated the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment.
Jerry Nadler: (49:15)
There is thus overwhelming authority against restricting impeachments to violations of established or statutory law. Every relevant principle of constitutional law compels that result. So does common sense. Impeachment is not a punishment for crimes. Impeachment exists to address threats to the political system, applies only to political officials, and responds not by imprisonment or fines, but only by stripping political power. It would make no sense to say that a president who engages in horrific abuses must be allowed to remain in Congress in office unless Congress had anticipated his or her specific conduct in advance and written a statute expressly outlawing it.
Jerry Nadler: (50:03)
For one thing that would be practically impossible. As Justice Story observed, “The threats posed by presidential abuse are of so various and complex a character that it would be almost absurd to attempt a comprehensive list.”
Jerry Nadler: (50:18)
The Constitution is not a suicide pact. It does not leave us stuck with presidents who abuse their power in unforeseen ways that threaten our security and democracy. Until recently, it did not occur to me that our president would call a foreign leader and demand a sham investigation meant to kneecap his political opponents all in exchange for releasing vital military aid that the president was already required by law to provide.
Jerry Nadler: (50:47)
No one anticipated that a president would stoop to this misconduct and Congress has passed no specific law to make this behavior a crime. Yet this is precisely the kind of abuse that the framers had in mind when they wrote the impeachment clause, when they charged Congress with determining when the president’s conduct was so clearly wrong, so definitely beyond the pale, so threatening to the constitutional order as to require his removal. And that is why we are here today. You must judge for yourselves whether justice will be had for President Trump’s crimes against our freedom and the Constitution.
Jerry Nadler: (51:28)
I will conclude by highlighting a few points that merit special emphasis as you apply the law of impeachment to President Trump’s misconduct. First, impeachment is not for petty offenses. The president’s conduct must constitute, as Mason put it, a great and dangerous offense against the nation, offenses that threaten the Constitution.
Jerry Nadler: (51:51)
Second, impeachable offenses involve wrongdoing that reveal the president as a continuing threat if he is allowed to remain in office. In other words, we fully recognize that impeachment does not exist for a mistake. It does not apply to acts that are merely unwise or unpopular. Impeachment is reserved for deliberate decisions by the president to embark on a course of conduct that betrays his oath of office and does violence to the Constitution.
Jerry Nadler: (52:21)
When the president has engaged in such conduct, and when there is strong evidence that he will do so again, when he has told us he’ll do so again, when he has told us that it’s okay to invite interference from a foreign power into our next election, the case for removal is at its peak. This is certainly the case when he invites, indeed attempts to compel, a foreign government to help him subvert the integrity of our next election. There can be no greater threat to the republic.
Jerry Nadler: (52:52)
Finally, high crimes and misdemeanors involved conduct that is recognizably wrong to a reasonable honorable citizen. The framers adopted a standard for impeachment that could stand the test of time. At the same time, the structure of the Constitution implies that impeachable offenses should not come as a surprise. Impeachment is aimed at presidents who act as if they are above the law, at presidents who believe their own interests are more important than those of the nation, and thus at presidents who ignore right and wrong in pursuit of their own gain.
Jerry Nadler: (53:29)
Abuse, betrayal, corruption. Here are each of the core offenses the framers feared most. The president’s abuse of power, his betrayal of the national interest, and his corruption of our elections plainly qualify as great and dangerous offenses. President Trump has made clear in word and deed that he will persist in such conduct if he is not removed from power. He poses a continuing threat to our nation, to the integrity of our elections, to our democratic order. He must not remain in power one moment longer.