Thursday, December 05, 2019

House Judiciary Committee Meets the Law Professoriate

by Michael C. Dorf

I did not watch all or even most of yesterday's hearing before the House Judiciary Committee, due to the press of teaching and other obligations. Accordingly, I do not purport to offer anything like a comprehensive assessment. Instead, I'll make brief remarks about the testimony of each of the four panelists.

1) Members of the House and Senate Judiciary Committees typically have legal training. Republican Congressman Matt Gaetz is no exception. He is a lawyer who practiced for a few years before running for Congress. And yet his questioning of Prof. Noah Feldman was self-defeating.

You can watch the key exchange here. In it, Gaetz seems to think he has trapped Feldman, because Feldman previously wrote an op-ed in which he criticized Democrats for being too eager to impeach President Trump. Feldman responds by saying "Until this call on July 25th I was an 'impeachment skeptic.' The call changed my mind sir, and for good reason."

That's an excellent answer, but the premise of the question was, not to put too fine a point on it, idiotic. One key Republican talking point throughout the impeachment inquiry is that Democrats are impeaching Trump because they disapprove of his policy positions or his "outside-the-Beltway" style or for other illegitimate reasons. The ostensible evidence for that view is that many Democrats have been for impeachment for a long time. Accordingly, the fact that Feldman was against impeachment prior to the revelations of Trump's actions with respect to Ukraine enhances Feldman's credibility when he now says that he favors Trump's impeachment. Feldman is the boy who didn't cry wolf.

I'm left to conclude that Gaetz either isn't a very good lawyer or that his goal yesterday was simply to impress his Trump-supporting constituents with his aggressive defense of Trump, regardless of whether that defense had any logic to it.

2) Of all the witnesses who testified, Prof. Michael Gerhardt is by far the leading expert. He has studied and written extensively about the history of impeachment. He was recognized as an expert by both sides during the Clinton impeachment. And what he said yesterday was sensible. Still, I think that he--and all of the law profs called by the Democrats--focused a bit too much on the original understanding of impeachment and not enough on its subsequent development, especially in cases of the impeachment of judges, about which Prof. Gerhardt has written insightfully.

Nonetheless, the Republican attack line was both hypocritical and wrongheaded. Georgia Congressman Doug Collins ripped the law professors for purporting to channel the Founding Fathers. "I don’t think we have any idea what they would think," he said. The Twitterverse then went nuts, as numerous liberal legal types pointed out that Republicans are supposed to be originalists, so why, all of a sudden, are they skeptical of the original understanding?

If I were inclined to defend the GOP against charges of hypocrisy, I'd say that originalism as generally preached these days is not about figuring out what the framers would think but about understanding the words of the Constitution in their historical context. Yet that defense would fail, because even though some of the law professors did talk about what the framers would think, it was obvious in their context that they were doing so for the purpose of shedding light on the original public meaning of the impeachment clause, not because they think we are bound by the particular thoughts of any of the framers.

Still, might one say that just as it's hypocritical for Republicans to abandon originalism when the original understanding is invoked for results they don't like, so too it's hypocritical for Democrats to embrace originalism when the original understanding supports a result they like. And that would be fair if that's what the law profs called by the Democrats were doing. But it wasn't.

There's a crucial asymmetry here. Law professors and lawyers who are not originalists nonetheless think that original meaning is very important in constitutional interpretation; we just think it's often indeterminate and sometimes needs to be supplemented by other so-called "modalities" of constitutional law (H/T to Prof Philip Bobbitt for "modalities"). So there's nothing remotely hypocritical about a liberal law professor invoking a clear original meaning.

3) Prof. Pamela Karlan is a national treasure. Her testimony was forceful. And so, of course, the Internet has been diverted to focusing on the fact that as an aside, she name-checked Donald Trump's youngest son. This was, in the words of whoever curates the Twitter account of the First Lady, something for which Prof. Karlan should be "ashamed." Prof. Karlan later apologized. I wish she hadn't.

Why? Not because I disagree with the sentiment that minor children should be left out of politics. Of course they should be. But Prof. Karlan's name-checking of Barron Trump was in no way insulting towards him. She didn't say anything at all about him. What she said, to illustrate the difference between the President and a King, was this: "While the president can name his son Barron, he can’t make him a baron." She wasn't even making fun of the name Barron; she was using the name as a way to make a wholly valid point.

So yes, if someone ridicules the appearance or intelligence or any other quality of a minor child of the president, that would warrant an apology. The Barron/baron point did not do that, so no apology was necessary. Except from me. I apologize for wasting more time on this non-issue, when the President is a threat to the Republic, to survival of the planet, and to basic decency.

4) Prof. Jonathan Turley was called by the Republicans but nonetheless agreed with the other law professors on the basic substantive standard of impeachability. He disagreed about the evidence. Why? Partly because he doesn't see a smoking gun. And why is that? Because the House Intelligence Committee did not hear from people who spoke directly to Trump. Such potential witnesses would include Rudy Giuliani, Mick Mulvaney, and Mike Pompeo. The obvious answer here is that these characters refused to testify.

Prof Buchanan will have a column on this blog tomorrow examining Prof Turley's testimony at greater length. I'll simply observe that the rules of evidence do not apply in a House impeachment inquiry, so the fact that some of what the witnesses said to the House Intelligence Committee was hearsay is a red herring. Moreover, as the House Intelligence Committee Report makes abundantly clear, it is very easy to infer from the overwhelming and uncontradicted evidence that the President was leveraging aid to Ukraine for political benefit. The fact that there is no credible alternative account of the timing and all of the statements is enough.

Prof. Turley also said that it can't be obstruction of Congress to go to court to test the privileges that executive officials have. That's true, but that's also irrelevant. The president has gone to court to block the release of his financial records, but he did not go to court with respect to the impeachment inquiry. He simply announced (through the White House Counsel) that members of his administration would not cooperate with the House inquiry. That's the obstruction and by itself would be impeachable. The fact that the House also has a basis for impeaching for the underlying corrupt requests to Ukraine is a consequence of the heroic acts of patriotism by the likes of Lt. Colonel Vindman, Fiona Hill, et al.

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All in all, yesterday was a pretty good day for the law professoriate. Whether it was also a good day for the Republic depends on what happens next.