At House Impeachment Hearing, Legal Scholars Disagree on the Meaning of 'High Crimes and Misdemeanors'

The three witnesses for the Democrats said Trump clearly committed impeachable offenses, while the lone witness for the Republicans said he wasn't so sure.

The House Judiciary Committee on Wednesday held an impeachment inquiry hearing with four legal scholars, who were asked to offer their perspectives on the potential charges facing President Donald Trump. Despite the presence of "experts," the hearing proved to be yet another partisan back-and-forth that likely changed very few minds.

Each of the three witnesses called by Democrats testified that Trump's interactions with Ukraine constituted clear impeachable offenses. (Trump is the subject of an impeachment probe due to allegations that he withheld from Ukraine a White House meeting and $391 million in congressionally approved military aid unless President Volodymyr Zelenskiy announced public investigations into Trump's political foes.)

"Soliciting a foreign government to investigate an electoral rival for personal gain on its own constitutes an impeachable high crime and misdemeanor under the Constitution," said Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School. Specifically, Trump wanted Ukraine to investigate both Burisma Holdings—where former Vice President Joe Biden's son Hunter sat on the board—and a discredited theory that Ukraine engaged in widespread election interference to benefit 2016 Democratic nominee Hillary Clinton. 

Pamela S. Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford Law School, invoked the motivations laid out at the Constitutional Convention, particularly the words of William Davie, a delegate to the meeting and the 10th governor of North Carolina. "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,'" Karlan testified. "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 Michael Gerhardt, the Burton Craige Distinguished Professor of Jurisprudence at the University of North Carolina, Chapel Hill, said the mechanism of impeachment reflected the importance of limited government. "A people, who had overthrown a king, were 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 do no wrong," Gerhardt said. "If what we are talking about today is not impeachable, then nothing is impeachable."

Meanwhile, Republican witness Jonathan Turley, the Shapiro Professor of Public Interest Law at the George Washington University Law School, expressed caution, likening the Trump impeachment process to an "impulse buy." 

Turley described the impeachment process as rushed, and although he said the evidentiary record may eventually be strong enough for a trial, he contended that it is too thin at present. "It has not been explained to me why you want to set the record for the fastest impeachment," he said. "You need to stick the landing on quid pro quo."

"The House testimony is replete with references to witnesses like John Bolton, Rudy Giuliani, and Mike Mulvaney who clearly hold material information," Turley noted, arguing that congressional investigators must hear from people in the president's inner circle before proceeding. Yet Trump has prohibited those people from appearing before Congress.

Turley also took issue with his fellow scholars' interpretation of what qualifies as "high crimes and misdemeanors"—the constitutional standard for impeaching a president. Those on the other side of the argument are looking through too vague a lens, he testified. "That's a favorite mantra, that it's sort of close enough for jazz," Turley said. "Well, this isn't improvisational jazz. It isn't good enough. If you're going to accuse a president of bribery you need to make it stick." 

Feldman countered that the bar is clear, and Trump met it. "High crimes and misdemeanors are actions of the president in office where he uses his office to advance his personal interests," he said, "potentially for personal gain, potentially to corrupt the electoral process, and potentially as well to corrupt the national security of the United States."

At one point, Karlan sparred with ranking member Rep. Doug Collins (R–Ga.), who implied in his opening statement that the four law professors—one of whom he called before the committee—could not be trusted. "America will see why most people don't go to law school," he said. Karlan took issue with that.

"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," Karlan said. "So I'm insulted by the suggestion that, as a law professor, I don't care about those facts."

And in a puzzling moment on the other side of the aisle, the Democratic counsel, Norman Eisen, asked Karlan if there was enough evidence to charge Trump with "the high crime and misdemeanor of obstruction of Congress." Karlan replied that, while she agrees as a citizen, the question extended outside the bounds of her expertise as a legal scholar. As if the proceedings were not partisan enough, Eisen replied, "We will accept your opinion as a citizen."