By Robert A. Vella
Yesterday, four legal and constitutional scholars gave testimony before the House Judiciary Committee tasked with drafting articles of impeachment against President Trump. This post provides in depth coverage for three of the testimonies which highlights the historical rationale for impeachment as well as the specific offenses committed by Mr. Trump. I excluded the testimony of the fourth scholar, Jonathan Turley, because he refused to address the substantive aspects of impeachment and instead focused entirely on its political considerations which – in my opinion – were both irrelevant for the purposes of this hearing and valueless since that is not his area of expertise; however, you may read accounts of his testimony in the following links. Also, this post features today’s other important news headlines.
WASHINGTON — There’s no question that President Donald Trump violated the Constitution’s limits on his power or that the House should respond by impeaching him, three legal scholars told the House Judiciary Committee on Wednesday.
That’s exactly what majority Democrats were hoping to hear, and it’s the testimony they will cite as the House moves toward drafting articles of impeachment against Trump based on his solicitation of Ukraine to launch investigations with political implications in the U.S. and possibly other matters.
“How we respond will determine the character of our democracy for generations,” Rep. Jamie Raskin, D-Md., a member of the Judiciary Committee, said.
Ultimately, three of the witnesses portrayed Trump as abusing the powers of his office for personal gain — and in contravention of U.S. interests — in ways envisioned by the founding fathers when they gave Congress the authority to remove the chief executive. The reason to impeach Trump isn’t to punish him, law professors Pamela Karlan of Stanford, Noah Feldman of Harvard and Michael Gerhardt of the University of North Carolina said, but to prevent further damage.
“We three are unanimous,” Gehardt said, when they were asked if Trump’s actions amount to a “high crime and misdemeanor,” as identified in the Constitution.
“If Congress fails to impeach here, then the impeachment process has lost all meaning, and, along with that, our Constitution’s carefully crafted safeguards against the establishment of a king on American soil,” Gerhardt said in his opening statement. “No one, not even the president, is beyond the reach of our Constitution and our laws.”
“Imagine living in a part of Louisiana or Texas that’s prone to devastating hurricanes and flooding,” Karlan told the panel.
“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.”
“Ultimately the reason the Constitution provided for impeachment was to anticipate a situation like the one that is before you today,” Harvard Law School professor Noah Feldman testified. “If we cannot impeach a president who uses his power for personal advantage, we no longer live in a democracy, we live in a monarchy or a dictatorship.”
“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 . . . then what you’re saying is, it’s fine to go ahead and do this again,” Karlan said. “It’s your responsibility to make sure that all Americans get to vote in a free and fair election next November.”
The framers were borrowing the basic idea of impeachment from the constitutional tradition of England. There, for hundreds of years, Parliament had used impeachment to oversee government officials, remove them from office for abuse of power and corruption, and even punish them.
The biggest difference between the English tradition of impeachment and the American constitutional plan was that the king of England could not be impeached. In that sense, the king was above the law, which only applied to him if he consented to follow it. In stark contrast, the president of the United States would be subject to the law like any other citizen.
The idea of impeachment was therefore absolutely central to the republican form of government ordained by the Constitution. Without impeachment, the president would have been an elected monarch. With impeachment, the president was bound to the rule of law. Congress could oversee the president’s conduct, hold him accountable, and remove him from office if he abused his power.
But the Framers of our Constitution realized that elections alone could not guarantee that the United States would remain a republic. One of the key reasons for including an impeachment power was the risk that unscrupulous officials might try to rig the election process. At the Constitutional Convention, William Davie warned that unless the Constitution contained an impeachment provision, a president might “spare no efforts or means whatever to get himself re-elected.” 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.” Mason was responsible for adding “high Crimes and Misdemeanors” to the list of impeachable offenses. So we know that that list was designed to reach a president who acts to subvert an election whether it is the election that brought him into office or an upcoming election where he seeks a second term.
Moreover, the Founding Generation, like every generation of Americans since, was especially concerned to protect our government and our democratic process from outside interference. For example, John Adams expressed concern with the very idea of an elected President, writing to Thomas Jefferson that “You are apprehensive of foreign Interference, Intrigue, Influence. So am I. But, as often as elections happen, the danger of foreign Influence recurs.” And in his Farewell Address, President Washington warned that “history and experience prove that foreign influence is one of the most baneful foes of republican government.” 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.
The framers’ concern about the need to protect against a corrupt president was evident throughout the constitutional convention. “Shall any man be above Justice?” Virginia delegate George Mason asked, “Above all shall that man be above it, who can commit the most extensive injustice?” Further, he queried, “Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment?”George Mason further worried that if the President “has the power of granting pardons before indictment or conviction, may he not stop inquiry and prevent detection?”James Madison responded that, “There is one security in this case to which gentlemen may not have averted: 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; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected also, he may likewise be suspended and be impeached and removed.” James Iredell from North Carolina, whom President Washington later appointed to the Supreme Court, assured his fellow delegates, the president “is of a very different nature from a monarch. He is to be [p]ersonally responsible for any abuse of the great trust placed in him.”Gouverneur Morris agreed that the president “may be bribed by a greater interest to betray his trust, and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard against it by displacing him.” He emphasized that, “This Magistrate is not the King but the prime minister. The people are the King.” James Wilson, another one of President Washington’s first appointments to the Supreme Court, agreed that, “far from being above the laws, he is amenable to the laws in his private character as a citizen, and in his public character by impeachment.”Madison, who would become known as the Father of our Constitution, argued for the inclusion of impeachment in our Constitution, because a president might “pervert his administration into a scheme of peculation or oppression” or “betray his trust to foreign leaders.” William Davie, a North Carolina delegate, warned that “If he be not impeachable whilst in office, he will spare no effort or means whatever to get himself re-elected”(emphasis added). These aren’t the words of people planning to create an unaccountable chief executive, nor of constitutional designers who thought to leave the remedy for abuse of office simply to elections. Their concerns and observations closely mirror the current questions before this House.