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.

* * *
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.


Joe said...

There is clear evidence of obstruction, and not just of Congress, as shown in the Mueller Report too. This also touches upon his concern for rushing. The Mueller investigation took years. As Chris Hayes said last night, a lot of more evidence came out once Nixon left office [I should read up to that since I'm not quite sure what that entails], but the House committee crafted articles of impeachment anyhow.

But, you comment as to obstruction in general is correct -- there is a general obstruction there. Also, there is simply a run out the clock nature to this. We saw that in the Bush Administration. Just to deal with one or two acts of obstruction regarding subpoenas, we had years of litigation and it petered out as the administration did. Plus, and this was flagged, Trump's open-ended obstruction crosses the line.

The idea of using the courts instead is also questionable on principle. Impeachment is a means to hold officials accountable in a specific political way. Using the courts is not always the appropriate way to do things. Both sides say this at times.

Steve Davis said...

Unfortunately, I don't think any of this matters. Congress is playing out a drama that will, almost inevitably, end with a fizzle, and an acquittal of Trump. There is no chance based on the evidence so far that he will be convicted. That's not to say a convincing case has not been made that Trump abused his Presidential power for his own personal benefit -- to me it seems very clear he did. But it won't matter because the GOP has figured out, probably rightly, that it can spin this as a weak case based on indirect evidence, and motivated by a Democratic desire to impeach and get rid of Trump by hook or crook (while not directly relevant, this isn't a wholly fictional issue -- many Democrats have been pushing for Trump's impeachment almost from the beginning of his presidency).

I think Democrats are making a mistake not to seek to compel testimony of direct witnesses, including, in particular, Giuliani. They can go to court to compel him to testify, and they probably will win. It makes no sense to proceed with a case based on second-best evidence. The Dems should cut deals with Parnas and Fruman so they can testify about Giuliani while not risking their own further risk of criminal liability, if possible.

Joe said...

Win? When? And, removal is a longshot but that's not the only value any less than a police shooting indictment.

Laura said...

Professor Turley was simply wrong when he framed the issue of obstruction as: “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.“

Respectfully, this doesn’t make sense. First, absent some sort of action by the House to enforce its subpoenas by dusting off its inherent authority, it would be the House that has to go to court, not the president. Second, Turley’s reasoning fails to take into consideration that the White House’s edict, per Cipollone’s letter, not to comply with House subpoenas for documents and witnesses is predicated nearly exclusively on the argument that the the impeachment inquiry is illegitimate (whether pursuant to the impeachment clause or as a matter of “due process”). In that regard, why would the White House ever go to court on its own initiative if the administration thinks the inquiry is illegitimate, as Turley argues is the president’s right, which he shouldn’t be “punished” for? As Professor Feldman so importantly emphasized the throughout his testimony, one needs to view these matters through a prism of effects. Under Turley’s logic, the practical effect would be that the House has to sit idly by until the president or his admin. goes to court (and for what, an advisory opinion about whether the administration in general has to produce documents or witnesses?). The White House is not going to do this for political, legal, and strategical reasons. The overall practical effect: it puts the ball in the president’s court, and the president is not going to pick up the ball. In other words, Turley’s approach gives the president all the control. It puts the onus on the House to go to court to enforce its subpoenas, and, importantly, it does so without giving the House the benefit of weighing other important considerations in carrying out its mission, such as the White House’s reasonably predictable legal strategy and arguments it is sure to make (absolute immunity is the first, but surely not the last, stop), the reasonably legitimate concerns that the president will not stop his impeachable pattern of behavior (per the Schiff committee finding that the president presents a clear and present danger), the fact that the election cycle is set to begin in 2020 and the president’s actions concern the integrity of the 2020 election, and the White House’s blanket refusal to recognize the inquiry or respond to subpoenas (again, why is this the House’s burden to bear?). Any notion that the president will be impeached unfairly by a “hasty” House that does not want to go to court to, in essence, vindicate or argue the rights of the president, is hogwash. The president put the House in its current position, and, if the president doesn’t want to be impeached for obstruction, then he has the option, indeed burden, to avail himself by being reasonably responsive and working with the House to reach some compromise (that would include sorting out at least some issues of privilege). In sum, Turley’s reasoning puts all the control into the president’s control.

Laura said...


He also made other statements in the same colloquy. Specifically, he reasoned, without evidence, that the current House is replicating the reasoning underlying the Nixon obstruction article, as follows:

Peter Rodino, as the Chairman of Judiciary, his position was that Congress alone decides what information may be given to it. Alone. His position was that the courts have no role in this. By that theory, any refusal by the president based on executive privilege or immunity would be the basis of impeachment. That is essentially the theory being replicated today.

This too is hogwash under the facts of the current situation. I do not know enough to say whether or not Turley’s account of this Nixon article is correct, so I will just assume it is for the sake of argument.
Turley does not explain how he came to the conclusion that the current House is purportedly basing possible articles of impeachment for obstruction on the exclusive reasoning by Rodino. More importantly, however, the White House is not refusing to be responsive based solely on grounds of executive privilege or immunity. The facts of the current case are that the president and his administration are refusing to be responsive at all and do not recognize the proceedings as legitimate. Turley’s reasoning does not take that into account. Again, Turley’s reasoning leads to the practical effect of stopping the House in its tracks when a president chooses not to participate at all with the proceedings, without consideration of the facts on the ground.

Under Turley’s logic concerning the issue of obstruction, it seems that the courts would always play a role in an impeachment inquiry or proceeding, regardless of the facts or circumstances. But, that has a perverse effect on the House in light of the circumstances, and it puts far too much control in the hands of the president.

I appreciate Turley’s concern that a president could be impeached for obstruction because a House seemingly runs roughshod over a president without giving a president a fair shake to assert legitimate privileges or arguments that implicate fairness (whether in perception or based on constitutional concerns about give and take between the two branches). However, at the same time, a president should not be able to run roughshod over the House by refusing to be responsive or participate in some form or fashion in an impeachment inquiry or proceeding (if he or she does, it’s at their own peril and by their own doing). Nor, under these facts, should the courts have to always be involved in the process because that would dictate to the House how it must proceed. The president should not be able to force the House’s hand under such circumstances or be able to dictate how the House must proceed. In short, Turley’s reasoning is weak under the facts of the current situation.

Jim said...

I found it surprising that, as noted, Prof. Turley primarily challenged the case for impeachment by questioning the sufficiency of the evidence. It's unclear why he believes he has any special expertise on that topic -- perhaps an expert could argue, for example, that comparable evidence has been deemed insufficient in other cases to sustain a criminal conviction for bribery, but I didn't see him attempting to make such a claim (which probably is not true in any case, though I'm also not an expert).

But leaving aside the question of expertise, a sufficiency challenge seems unfounded if (as Prof. Turley seemed to be saying) it's based on the absence of "smoking gun" evidence and reliance instead on inferences drawn from circumstantial evidence. Our prisons are filled with inmates whose convictions rest on the latter sort of evidence -- and here we're not talking about imprisonment, but merely removal of Trump's ability to use the office and powers of the president for personal gain. Also, I know Prof. Dorf thinks the analogy between impeachment and indictment is not perfect, but it's worth recalling that a grand jury needs only probable cause to return an indictment. For all of those Republicans in Congress who demand some high degree of certainty and "smoking gun" evidence to impeach, maybe an elevated evidentiary standard is appropriate in a Senate trial (along with the 2/3 vote needed for removal), but what's the case for insisting on this standard to support impeachment in the House -- of a president, by the way, whose obstruction prevents the discovery of the "smoking gun" evidence that surely is out there.

Joe said...

I see a familiar name among the signatories to this letter:

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