[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE IMPEACHMENT INQUIRY INTO
PRESIDENT DONALD J. TRUMP: CONSTITUTIONAL
GROUNDS FOR PRESIDENTIAL IMPEACHMENT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
----------
DECEMBER 4, 2019
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Serial No. 116-67
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
38-933 WASHINGTON : 2020
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
C O N T E N T S
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December 4, 2019
OPENING STATEMENTS
Page
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 5
WITNESSES
Noah Feldman, Felix Frankfurter Professor of Law and Director,
Julis-Rabinowitz Program on Jewish and Israeli Law, Harvard Law
School
Oral Testimony............................................... 14
Prepared Testimony........................................... 18
Pamela S. Karlan, Kenneth and Harle Montgomery Professor of
Public Interest Law and Co-Director, Supreme Court Litigation
Clinic, Stanford Law School
Oral Testimony............................................... 26
Prepared Testimony........................................... 30
Michael Gerhardt, Burton Craige Distinguished Professor of
Jurisprudence, The University of North Carolina School of Law
Oral Testimony............................................... 36
Prepared Testimony........................................... 40
Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public
Interest Law, The George Washington University Law School
Oral Testimony............................................... 50
Prepared Testimony........................................... 53
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
A House Committee on the Judiciary report titled ``Constitutional
Grounds for Presidential Impeachment'' for the record submitted
by the Honorable Zoe Lofgren, a Representative in Congress from
California..................................................... 144
A Quartz article titled ``A Harvard Law Professors Thinks Trump
Could be Impeached Over `Fake News' Accusations'' for the
record submitted by the Honorable Matt Gaetz, a Representative
in Congress from Florida....................................... 288
A Bloomberg article titled ``Mar-a-Lago Ad Belongs in Impeachment
File'' for the record submitted by the Honorable Matt Gaetz, a
Representative in Congress from Florida........................ 291
A Bloomberg article titled ``Trump's Wiretap Tweets Raise Risk of
Impeachment'' for the record submitted by the Honorable Matt
Gaetz, a Representative in Congress from Florida............... 293
A Wall Street Journal article titled ``Opinion, Biden Probe,
Trump Texas Raise Similar Questions'' for the record submitted
by the Honorable Louie Gohmert, a Representative in Congress
from Texas..................................................... 311
A statement from Checks and Balances on President Trump's abuse
of office for the record submitted by the Honorable Sheila
Jackson Lee, A Representative in Congress from Texas........... 317
A document listing pieces of legislation passed by the U.S. House
of Representatives in the 116th Congress for the record
submitted by the Honorable David Cicilline, a Representative in
Congress from Rhode Island..................................... 335
A Politico article titled ``Ukrainian Efforts to Sabotage Trump
Backfire'' for the record submitted by the Honorable Andy
Biggs, a Representative in Congress from Arizona............... 358
A Politico article titled ``Trump Holds Up Ukraine Military Aid
Meant to Confront Russia'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 376
A The Hill article titled ``Ukraine's Ambassador: Trump's
Comments Send Wrong Message to World'' for the record submitted
by the Honorable Andy Biggs, a Representative in Congress from
Arizona........................................................ 382
A Politico article titled ``Russia Accuses Ukraine of Sabotaging
Trump'' for the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 385
Transcript of Vice President Biden at the Council on Foreign
Affairs for the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 391
A Washington Post article titled ``Schiff's False Claim his
Committee had not Spoken to the Whistleblower'' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 423
A Financial Times article titled ``Ukraine's Leaders Campaign
Against Pro-Putin' Trump'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 431
Transcript of the July 25 call between President Trump and
President Zelensky submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 435
A Washington Examiner article titled ``Analysis: Democrats Have a
Colonel Vindman Problem'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 440
A Joint Statement from Committee Chairs on the Release of the
Ukraine Call Record for the record submitted by the Honorable
Andy Biggs, a Representative in Congress from Arizona.......... 449
A New York Times article titled ``Investing in Ukraine's Future''
for the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 451
A Roll Call Article titled ``Report: Schiff Engaged with Russian
Prank Callers'' for the record submitted by the Honorable Andy
Biggs, a Representative in Congress from Arizona............... 455
Remarks by Ambassador Yovanovitch on the 5th Anniversary of the
Ukraine Crisis Media Center's Founding for the record submitted
by the Honorable Andy Biggs, a Representative in Congress from
Arizona........................................................ 459
A DOJ Press Release titled ``Credit Suisse's Investment Bank in
Hong Kong Agrees to Pay $47 Million Criminal Penalty for
Corrupt Hiring Scheme that Violated the FCPA'' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 465
Declaration of Ambassador Gordan D. Sondland for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona A Wall Street Journal article titled
``Whistleblower Is Expected to Testify Soon, House Intelligence
Chairman Schiff Says'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 478
A USA Today article titled ``Whistleblower Reaches Agreement to
Testify, Will Appear `Very Soon,' Rep. Adam Schiff Says'' for
the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 484
A Vox article titled ``Trump Whistleblower Will Testify Before
the House Intelligence Committee ``very soon'' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 487
A CNN article titled ``Schiff Confirms Tentative Agreement for
Whistleblower to Testify Before House Intelligence Committee''
for the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 492
A Washington Post article titled ``Intelligence Panel Has to Deal
to Hear Whistleblower's Testimony'' for the record submitted by
the Honorable Andy Biggs, a Representative in Congress from
Arizona........................................................ 495
A HuffPost article titled ``Whistleblower Reportedly Agrees to
Testify Before House Intelligence Committee'' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 499
An Arkansas Democrat-Gazette article titled ``Schiff: Panel Will
Hear from Whistleblower'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 501
A New York Post article titled ``Schiff Says Whistleblower Will
Appear Before House Panel'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 505
A Washington Times article titled ``Rep. Adam Schiff, House Intel
Panel to Hear from Whistleblower `very soon''' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 507
A Newsmax article titled ``Schiff: Panel to Hear `Very Soon''
From Trump Whistleblower'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 512
A Talking Points Memo article titled ``Schiff Says
Whistleblower's Unfiltered Testimony' Will Be Held `Very
Soon''' for the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 514
A Daily Kos article titled ``Adam Schiff Expects Whistleblower to
Testify `Very Soon''' for the record submitted by the Honorable
Andy Biggs, a Representative in Congress from Arizona.......... 516
A Fox News article titled ``Schiff Says Agreement Reached with
Whistleblower to Testify Before House Committee'' for the
record submitted by the Honorable Andy Biggs, a Representative
in Congress from Arizona....................................... 518
A CNBC article titled ``House Intel Committee Has Reached An
Agreement For Trump-Ukraine Whistleblower to Testify `Very
Soon,' Schiff Says'' for the record submitted by the Honorable
Andy Biggs, a Representative in Congress from Arizona.......... 523
A MarketWatch article titled ``Whistleblower to Testify Before
Schiff Committee'' for the record submitted by the Honorable
Andy Biggs, a Representative in Congress from Arizona.......... 528
A Business Insider article titled ``The Whistleblower at the
Center of the Trump Impeachment Inquiry Has Agreed to Testify
Before Congress, Says Rep. Adam Schiff'' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 530
A Washington Examiner article titled ``Schiff: Ukraine
Whistleblower Will Testify Before House Intelligence
Committee'' for the record submitted by the Honorable Andy
Biggs, a Representative in Congress from Arizona............... 532
An Axios article titled ``Schiff Says House Intel Has Reached
Agreement for Whistleblower Testimony'' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 534
A Daily Caller article titled ``Rep. Adam Schiff: Whistleblower
Has Agreed to Testify'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 535
A Toledo Blade article titled ``Deal Reached for Testimony on
Ukraine'' for the record submitted by the Honorable Andy Biggs,
a Representative in Congress from Arizona...................... 538
A The Hill article titled ``Schiff Hopes Whistleblower Will
Testify `very soon' '' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 548
A UPI article titled ``Rep. Adam Schiff: Trump Whistle-blower
Agrees to Testify in Congress'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 550
A The Week article titled ``Schiff: Whistleblower Will Give
Unfiltered' Testimony `Very Soon''' for the record submitted by
the Honorable Andy Biggs, a Representative in Congress from
Arizona........................................................ 553
A Boston Herald article titled ``Schiff: Whistleblower Testimony
Expected `Very Soon''' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 554
A Whistleblower Complaint for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 556
A Washington Post article titled ``Transcript of the April 21,
2019 between President Trump and President Zelensky'' for the
record submitted by the Honorable Andy Biggs, a Representative
in Congress from Arizona....................................... 565
A Washington Post article titled ``Read the text messages
excerpts between U.S. diplomats, Giuliani and a Ukrainian aid''
for the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 568
A Washington Post article titled ``Letter from White House
counsel Pat Cipollone to House leaders'' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 586
Remarks by President Trump to the 73rd Session of the United
Nations General Assembly for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 594
Senator Johnson's response to House Republicans' Request for
Information on Ukraine for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 605
Letter from House Intelligence Committee Chairman Schiff to
Ranking Member Nunes for the record submitted by the Honorable
Andy Biggs, a Representative in Congress from Arizona.......... 613
A Dear Colleague to All Members on Whistleblower Complaint from
Speaker Pelosi for the record submitted by the Honorable Andy
Biggs, a Representative in Congress from Arizona............... 615
An press release titled ``Pelosi, Hoyer on Floor Consideration of
Resolution Regarding Whistleblower Complaint'' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 616
A press release titled ``Pelosi Remarks Announcing Impeachment
Inquiry'' for the record submitted by the Honorable Andy Biggs,
a Representative in Congress from Arizona...................... 617
A press release titled ``Pelosi Statement on Notes of Call
Between President Trump and Ukrainian President'' for the
record submitted by the Honorable Andy Biggs, a Representative
in Congress from Arizona....................................... 620
A press release titled ``Pelosi Floor Speech on Resolution
Calling on Administration to Release Whistleblower Complaint to
Congress'' for the record submitted by the Honorable Andy
Biggs, a Representative in Congress from Arizona............... 621
A Dear Colleague on Work to Advance Impeachment Inquiry During
District Work Period from Speaker Pelosi for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 624
Transcript of Pelosi Weekly Press Conference on October 2, 2019
for the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 626
A Dear Colleague on Next Steps in House's Ongoing Impeachment
Inquiry from Speaker Pelosi for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 634
Pelosi Floor Speech in Support of Resolution for Open Hearings on
Trump's Abuse of Power for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 636
Letter from Senator Grassley to Attorney General Barr for the
record submitted by the Honorable Andy Biggs, a Representative
in Congress from Arizona....................................... 639
A POLITICO article titled ``Trump kills plan to cut billions in
foreign aid'' for the record submitted by the Honorable Andy
Biggs, a Representative in Congress from Arizona............... 643
A Washington Examiner article titled ``Thinking clearly about
Trump and aid to Ukraine'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 647
A Washington Examiner article titled ``Testimony: How Trump
helped Ukraine'' for the record submitted by the Honorable Andy
Biggs, a Representative in Congress from Arizona............... 651
A Washington Examiner article titled ``Extortion: Democrats test
new charge against Trump'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 654
A Washington Post article titled ``Democrats sharpen impeachment
case, decrying `bribery' as another potential witness emerges
linking Trump to Ukraine scandal'' for the record submitted by
the Honorable Andy Biggs, a Representative in Congress from
Arizona........................................................ 657
A Washington Post article titled ``House is investigating whether
Trump lied to Mueller, its general counsel told a federal
appeals court'' for the record submitted by the Honorable Andy
Biggs, a Representative in Congress from Arizona............... 670
A NPR article titled ``Democrats Offer Trump Chance To Testify,
And He Says He Might Do It--In Writing'' for the record
submitted by the Honorable Andy Biggs, a Representative in
Congress from Arizona.......................................... 679
A Washington Post article titled ``Sen. Johnson says
whistleblower's sources exposed things that didn't need to be
exposed''' for the record submitted by the Honorable Andy
Biggs, a Representative in Congress from Arizona............... 689
A Washington Examiner article titled ``The Adam Schiff
Empowerment Act'' for the record submitted by the Honorable
Andy Biggs, a Representative in Congress from Arizona.......... 697
A Washington Examiner article titled ``Democrats don't want
public to know origins of Ukraine investigation like they
didn't want public to know origins of Russia investigation''
for the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 699
A New York Times article titled ``Ukraine's President Says Call
With Trump Was Normal''' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 703
A Wall Street Journal article titled ``Ukrainian President Denies
Trump Pressured Him During July Call'' for the record submitted
by the Honorable Andy Biggs, a Representative in Congress from
Arizona........................................................ 706
A Press Release from President of Ukraine official website title
``Ukrainian President Denies Trump Pressured Him During July
Call'' for the record submitted by the Honorable Andy Biggs, a
Representative in Congress from Arizona........................ 709
A Time article titled `Nobody Pushed Me.' Ukrainian President
Denies Trump Pressured Him to Investigate Biden's Son'' for the
record submitted by the Honorable Andy Biggs, a Representative
in Congress from Arizona....................................... 710
A New York Time article titled ``Ukraine's President Says Call
With Trump was `Normal' '' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 712
A CNBC article titled ``Ukraine's president on Trump call:
`Nobody pushed me' '' for the record submitted by the Honorable
Andy Biggs, a Representative in Congress from Arizona.......... 715
A Washington Post article titled `` `America first' shouldn't
mean cutting foreign aid'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 718
A New York Times article titled ``Transcript: Donald Trump
Expounds on His Foreign Policy Views'' for the record submitted
by the Honorable Andy Biggs, a Representative in Congress from
Arizona........................................................ 727
A Reuters article titled ``Trump plans 28 percent cut in budget
for diplomacy, foreign aid'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 757
A POLITICO article titled ``Trump Administration to Attempt to
Kill $3B in Foreign Aid'' for the record submitted by the
Honorable Andy Biggs, a Representative in Congress from Arizona 762
A Reuters article titled ``Trump 2020 budget slashes foreign aid,
hikes defense spending: official'' for the record submitted by
the Honorable Andy Biggs, a Representative in Congress from
Arizona........................................................ 765
The American Independent article titled, ``GOP's Constitutional
Expert Gets Basic Impeachment Fact Wrong at Hearing'' for the
record submitted by the Honorable David Cicilline, a
Representative in Congress from Rhode Island................... 770
A Tweet by Melania Trump for the record submitted by the
Honorable Mike Johnson, a Representative in Congress from
Louisiana...................................................... 774
APPENDIX
A Letter from John Eastman to Chairman Nadler and Ranking Member
Collins for the record submitted by the Honorable Doug Collins,
Ranking Member, Committee on the Judiciary..................... 794
A Statement from David Rivkin for the record submitted by the
Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 802
A Statement from Randy Barnett for the record submitted by the
Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 804
A Statement for the record submitted by the Honorable Sheila
Jackson Lee, a Representative in Congress from Texas........... 810
A Statement for the record submitted by the Honorable Martha
Roby, a Representative in Congress from Alabama................ 814
THE IMPEACHMENT INQUIRY INTO PRESIDENT DONALD J. TRUMP: CONSTITUTIONAL
GROUNDS FOR PRESIDENTIAL IMPEACHMENT
----------
WEDNESDAY, DECEMBER 4, 2019
House of Representatives
Committee on the Judiciary
Washington, DC.
The committee met, pursuant to call, at 10:10 a.m., in Room
1100, Longworth House Office Building, Hon. Jerrold Nadler
[chairman of the committee] presiding.
Present: Representatives Nadler, Lofgren, Jackson Lee,
Cohen, Johnson of Georgia, Deutch, Bass, Richmond, Jeffries,
Cicilline, Swalwell, Lieu, Raskin, Jayapal, Demings, Correa,
Scanlon, Garcia, Neguse, McBath, Stanton, Dean, Mucarsel-
Powell, Escobar, Collins, Sensenbrenner, Chabot, Gohmert,
Jordan, Buck, Ratcliffe, Roby, Gaetz, Johnson of Louisiana,
Biggs, McClintock, Lesko, Reschenthaler, Cline, Armstrong, and
Steube.
Staff Present: Amy Rutkin, Chief of Staff; Perry Apelbaum,
Staff Director and Chief Counsel; Aaron Hiller, Deputy Chief
Counsel and Chief Oversight Counsel; Barry Berke, Counsel; Norm
Eisen, Counsel; Arya Hariharan, Deputy Chief Oversight Counsel;
James Park, Chief Constitution Counsel; Joshua Matz, Counsel;
Sarah Istel, Counsel; Matthew Morgan, Counsel; Kerry Tirrell,
Counsel; Sophia Brill, Counsel; Charles Gayle, Counsel; Maggie
Goodlander, Counsel; Matthew N. Robinson, Counsel; Ted Kalo,
Counsel; Priyanka Mara, Professional Staff Member; William S.
Emmons, Legislative Aide/Professional Staff Member; Madeline
Strasser, Chief Clerk; Rachel Calanni, Legislative Aide/
Professional Staff Member; Julian Gerson, Professional Staff
Member; Anthony Valdez, Fellow; Thomas Kaelin, Fellow; David
Greengrass, Senior Counsel; John Doty, Senior Advisor; Moh
Sharma, Member Services and Outreach Advisor; John Williams,
Parliamentarian; Jordan Dashow, Professional Staff Member;
Shadawn Reddick-Smith, Communications Director; Daniel Schwarz,
Director of Strategic Communications; Kayla Hamedi, Deputy
Press Secretary; Kingsley Animiey, Director of Administration;
Janna Pinckney, IT Director; Fais al Siddiqui, Deputy IT
Manager; Nick Ashley, Intern; Maria Villegas Bravo, Intern;
Alex Espinoza, Intern; Alex Thomson, Intern; Manam Siddiqui,
Intern; Catherine Larson, Intern; Kiah Lewis, Intern; Brendan
Belair, Minority Staff Director; Bobby Parmiter, Minority
Deputy Staff Director/Chief Counsel; Jon Ferro, Minority
Parliamentarian/General Counsel; Erica Baker, Minority Deputy
Parliamentarian; Paul Taylor, Minority Chief Counsel,
Constitution Subcommittee; Ashley Callen, Minority Chief
Oversight Counsel; Danny Johnson, Minority Oversight Counsel;
Jake Greenberg, Minority Oversight Counsel; and Ryan
Breitenbach, Minority Chief Counsel, National Security.
Chairman Nadler. The House Committee on the Judiciary will
come to order.
Without objection, the chair is authorized to declare
recesses of the committee at any time.
Mr. Sensenbrenner. Mr. Chairman, we are reserving the right
to object.
Chairman Nadler. The objection is noted.
Mr. Sensenbrenner. I reserve the right to object.
Chairman Nadler. The gentleman is reserved.
Mr. Sensenbrenner. Mr. Chairman, pursuant to clause 2(j)(1)
of rule XI, I am furnishing you with a demand for minority day
of hearings on this subject, signed by all of the Republicans
members.
Chairman Nadler. The gentleman will suspend. I could not
understand what you were saying. Just repeat it more clearly.
Mr. Sensenbrenner. Pursuant to clause 2(j)(1) of rule XI, I
am furnishing you with a demand for a minority day of hearings
on this subject, signed by all of the Republican members of the
committee. And I would request that you set this date before
the committee votes on any Articles of Impeachment.
Chairman Nadler. It's a motion?
Mr. Sensenbrenner. I withdraw my reservation.
Chairman Nadler. We will confer and rule on this later.
A quorum is present. This is the first hearing. This is the
first hearing we are conducting pursuant to House Resolution
660 and the special Judiciary Committee procedures that are
described in section 4(a) of that resolution.
Here is how the committee will proceed for this hearing: I
will make an opening statement, and then I will recognize the
ranking member for an opening statement. Each witness will have
10 minutes to make their statements, and then we will proceed
to questions.
I will now recognize myself for an opening statement.
Mr. Biggs. Mr. Chairman, parliamentary inquiry.
Chairman Nadler. I have the time for an opening statement.
The parliamentary inquiry is not in order at this time.
The facts before us are undisputed. On July 25th, President
Trump called President Zelensky of Ukraine and, in President
Trump's words, asked him for a favor. That call was part of a
concerted effort by the President and his men to solicit a
personal advantage in the next election, this time in the form
of an investigation of his political adversaries by a foreign
government. To obtain that private political advantage,
President Trump withheld both an official White House meeting
from the newly elected President of a fragile democracy and
withheld vital military aid from a vulnerable ally.
When Congress found out about this scheme and began to
investigate, President Trump took extraordinary and
unprecedented steps to cover up his efforts and to withhold
evidence from the investigators. And when witnesses disobeyed
him, when career professionals came forward and told us the
truth, he attacked them viciously, calling them traitors and
liars, promising that they will, quote,'' go through some
things,'' close quote.
Of course, this is not the first time that President Trump
has engaged in this pattern of conduct. In 2016, the Russian
Government engaged in a sweeping and systematic campaign of
interference in our elections. In the words of Special Counsel
Robert Mueller, quote, ``The Russian Government perceived it
would benefit from a Trump Presidency and worked to secure that
outcome,'' close quote.
The President welcomed that interference. We saw this in
real time when President Trump asked Russia to hack his
political opponent. The very next day, a Russian military
intelligence unit attempted to hack that political opponent.
When his own Justice Department tried to uncover the extent to
which a foreign government had broken our laws, President Trump
took extraordinary and unprecedented steps to obstruct the
investigation, including ignoring subpoenas, ordering the
creation of false records, and publicly attacking and
intimidating witnesses. Then, as now, this administration's
level of obstruction is without precedent.
No other President has vowed to, quote, ``fight all of the
subpoenas,'' unquote, as President Trump promised. In the 1974
impeachment proceedings, President Nixon produced dozens of
recordings. In 1998, President Clinton physically gave his
blood. President Trump, by contrast, has refused to produce a
single document and directed every witness not to testify.
Those are the facts before us.
The impeachment inquiry has moved back to the House
Judiciary Committee; and as we begin a review of these facts,
the President's pattern of behavior becomes clear. President
Trump welcomed foreign interference in the 2016 election. He
demanded it for the 2020 election. In both cases, he got
caught, and in both cases, he did everything in his power to
prevent the American people from learning the truth about his
conduct.
On July 24th, the special counsel testified before this
committee. He implored us to see the nature of the threat to
our country. Quote, ``Over the course of my career, I have seen
a number of challenges to our democracy. The Russian
Government's efforts to interfere in our elections is among the
most serious. This deserves the attention of every American,''
close quote.
Ignoring that warning, President Trump called the Ukrainian
President the very next day to ask him to investigate the
President's political opponent. As we exercise our
responsibility to determine whether this pattern of behavior
constitutes an impeachable offense, it is important to place
President Trump's conduct into historical context. Since the
founding of our country, the House of Representatives has
impeached only two Presidents. A third was on his way to
impeachment when he resigned. This committee has voted to
impeach two Presidents for obstructing justice. We have voted
to impeach one President for obstructing a congressional
investigation.
To the extent that President's conduct fits these
categories, there is precedent for recommending impeachment
here. But never before in the history of the Republic have we
been forced to consider the conduct of a President who appears
to have solicited personal political favors from a foreign
government. Never before has a President engaged in a course of
conduct that included all of the acts that most concerned the
Framers.
The patriots who founded our country were not fearful men.
They fought a war. They witnessed terrible violence. They
overthrew a king. But as they meant to frame our Constitution,
those patriots still feared one threat above all: foreign
interference in our elections. They had just deposed a tyrant.
They were deeply worried we would lose our newfound liberty,
not through a war--if a foreign army were to invade, we would
see that coming--but through corruption from within. And in the
early years of the Republic, they asked us, each of us, to be
vigilant to that threat.
Washington warned us, quote, ``to be constantly awake since
history and experience prove that foreign influence is one of
the most baneful foes of republican government.''
Adams wrote to Jefferson, quote, ``as often as elections
happen, the danger of foreign influence recurs.''
Hamilton's warning was more specific and more dire. In the
Federalist Papers he wrote that, quote, ``the most deadly
adversaries of republican government,'' unquote, would almost
certainly attempt to, quote, ``raise a creature of their own to
the chief magistracy of the Union.''
In short, the Founders warned us that we should expect our
foreign adversaries to target our elections and that we will
find ourselves in grave danger if the President willingly opens
the door to their influence.
What kind of President would do that? How will we know if
the President has betrayed his country in this manner? How we
will we know if he has betrayed his country in this manner for
petty, personal gain? Hamilton had a response for that as well.
He wrote, ``When a man unprincipled in private life, desperate
in his fortune, bold in his temper, possessed of considerable
talents, known to have scoffed in private at the principles of
liberty, when such a man is seen to mount the hobbyhorse of
popularity, to join the cry of danger to liberty, to take every
opportunity of embarrassing the general government and bringing
it under suspicion, it may justly be suspected that his object
is to throw things into confusion that he may ride the storm
and direct the whirlwind.''
Ladies and gentlemen, the storm in which we find ourselves
today was set in motion by President Trump. I do not wish this
moment on the country. It is not a pleasant task that we
undertake today, but we have each taken an oath to protect the
Constitution, and the facts before us are clear. President
Trump did not merely seek to benefit from foreign interference
in our elections. He directly and explicitly invited foreign
interference in our elections. He used the powers of his office
to try to make it happen. He sent his agents to make clear that
this is what he wanted and demanded. He was willing to
compromise our security and his office for personal political
gain.
It does not matter that President Trump got caught and
ultimately released the funds that Ukraine so desperately
needed. It matters that he enlisted a foreign government to
intervene in our elections in the first place.
It does not matter that President Trump felt that these
investigations were unfair to him. It matters that he used his
office not merely to defend himself but to obstruct
investigators at every turn.
We are all aware that the next election is looming, but we
cannot wait for the election to address the present crisis. The
integrity of that election is one of the very things at stake.
The President has shown us his pattern of conduct. If we do not
act to hold him in check now, President Trump will almost
certainly try again to solicit interference in the election for
his personal political gain.
Today, we will begin our conversation where we should, with
the text of the Constitution. We are empowered to recommend the
impeachment of President Trump to the House if we find that he
has committed treason, bribery, or other high crimes and
misdemeanors. Our witness panel will help us to guide that
conversation. In a few days, we will reconvene and hear from
the committees that worked to uncover the facts before us. And
when we apply the Constitution to those facts, if it is true
that President Trump has committed an impeachable offense or
multiple impeachable offenses, then we must move swiftly to do
our duty and charge him accordingly.
I thank the witnesses for being here today.
I now recognize the Ranking Member of the Judiciary
Committee----
Mr. Biggs. Mr. Chairman----
Chairman Nadler [continuing]. The gentleman from Georgia--
--
Mr. Biggs. Mr. Chairman----
Chairman Nadler [continuing]. Mr. Collins, for his opening
statement.
Mr. Biggs. Mr. Chairman, may I make a parliamentary inquire
question before you----
Chairman Nadler. The gentleman is not in order for a
parliamentary inquiry. I have recognized the Ranking Member for
an opening statement.
Mr. Collins. I thank the Chairman.
And it is interesting that, again, parliamentary
inquiries--and I believe some are actually some of the things I
am going to discuss today because we are sort of coming here
today in a different arena.
But for everybody who has not been here before, this is a
new room. It is new rules. It is a new month. We have even got
cute little stickers for our staff so we can come in because we
want to make this important and this is impeachment, because
we've done such a terrible job of it in this committee before.
But what is not new is basically what has just been reiterated
by the chairman. What is not new is the facts. What is not new
is it is the same, sad story.
What is interesting, even before I get into my, part of my
opening statement, was, is what was just said by the chairman.
We went back to a redo of Mr. Mueller. We're also saying,
quoting him, saying the attention of the American people should
be on foreign interference. I agree with him completely, except
I guess the American people did not include the Judiciary
Committee because we didn't take it up. We didn't have
hearings. We didn't do anything to delve deeply into this
issue. We passed election bills but did not get into the in-
depth part of what Mr. Mueller talked about, taking his own
report and having hearings about that. We didn't do it. So I
guess the American people doesn't include the House Judiciary
Committee.
You know, the interesting--we also just heard an
interesting discussion. We're going to have a lot of
interesting discussion today about the Constitution and other
things, but we also talked about the Founders. What's
interesting is, is the chairman talked a lot about the Founders
from the quotes--and, again, this is why we have the hearings--
about the Founders being concerned about foreign influence. But
what he also didn't quote was the Founders being really, really
concerned about political impeachment because you just don't
like the guy. You haven't liked him since November of 2016.
The chairman has talked about impeachment since last year
when he was elected chairman, 2 years ago on November 17th,
before he was even sworn in as chairman. So don't tell me this
is about new evidence and new things and new stuff. We may have
a new hearing room. We may have new mikes, and we may have
chairs that aren't comfortable, but this is nothing new, folks.
This is sad.
So what do we have here today? You know what I'm thinking?
I looked at this, and what is interesting is there's two things
that have become very clear. This impeachment is not really
about facts. If it was, I believe the other committees would
have sent over recommendations for impeachment. No, they're
putting it on this committee because, if it goes badly, I guess
they want to blame--Adam Schiff's committee and the HPSCI and
others want to blame this committee for it going bad, but
they're already drafting articles. Don't be fooled. They are
already getting ready for this.
We've already went after this with the Ukraine after
numerous failings of Mueller, Cohen, annulments. The list--
emoluments. The list goes on. But the American people are
obviously failing to see us legislate. If you want to know
what's really driving this, there's two things. It's called the
clock and the calendar, the clock and the calendar. Most people
in life, if you want to know what they truly value, you look at
their checkbook and their calendar. You know what they value.
That's what this committee values: time. They want to do it
before the end of the year. Why? Because the chairman said it
just a second ago: Because we're scared of the elections next
year. We're scared of the elections, that we'll lose again. So
we've got to do this now.
The clock and the calendar are what's driving impeachment,
not the facts. When we understand this, that's what the
witnesses here will say today.
What do we have here today? What is really interesting over
today and for the next few weeks is Americans will see why most
people don't go to law school. No offense to our professors.
But, please, really? We're bringing you in here today to
testify on stuff that most of you have already written about,
all four, for the opinions that we already know, out of the
classrooms that maybe you're getting ready for finals in, to
discuss things that you probably haven't even had a chance to,
unless you're really good on TV of watching the hearings for
the last couple of weeks, you couldn't have possibly actually
digested the Adam Schiff report from yesterday or the
Republican response in any real way.
Now, we can be theoretical all we want, but the American
people is really going to look at this and say, ``Huh? What are
we doing?'' because there's no fact witnesses planned for this
committee. That's an interesting thing. Frankly, there's no
plan at all except next week an ambiguous hearing on the
presentation from the HPSCI, the other committee that sent us
the report, and the Judiciary Committee, which I'm not still
sure what they want us to present on, and nothing else, no
plan. I asked the chairman before we left for Thanksgiving to
stay in touch, let's talk about what we have, because history
will shine a bright line on us starting this morning. Crickets
until I asked for a witness the other day, and let's just say
that didn't go well.
There's no whistleblower. And, by the way, it was proved
today that he's not or she's not afforded the protection of
identity. It's not in the statute. It's just something that was
discussed by Adam Schiff. We also don't have Adam Schiff, who
wrote the report. He said yesterday in a press conference: I'm
not going to. I'll send staff to do that.
He's not going to. But, you know, to me, if he was wanting
to, he'd come begging to us.
But, you know, here's the problem. It sums it up very
simply like this: Just 19 minutes after noon on inauguration
day, 2017, The Washington Post ran the headline, ``The Campaign
to Impeach the President has Begun.'' Mark Zaid, who would
later become the attorney for the infamous whistleblower,
tweeted in January 2017: The coup has started. The impeachment
will follow ultimately.
And in May of this year, Al Green says: If we don't impeach
the President, he'll get reelected.
You want to know what's happening? Here we go. Why did
everything that I say up to this point about no fact witnesses,
nothing for the Judiciary Committee, we spent 2 and a half
weeks before this hearing was even held under Clinton--2 and a
half weeks. We didn't even find your names out until less than
48 hours ago. I don't know what we're playing hide the ball on.
It's pretty easy what you're going say, but we can't even get
that straight.
So what are we doing for the next 2 weeks? I have no idea.
The chairman just said an ambiguous hearing on the report but
nothing else. If we're going to simply not have fact witnesses,
then we are the rubber stamp hiding out back, the very rubber
stamp the chairman talked about 20 years ago. What a disgrace
to this committee to have the committee of impeachment simply
take from other entities and rubber-stamp it.
You see, why do the things that I say matter about fact
witnesses and actually hearing and actually having us a due
process? Because, by the way, just a couple of months ago, the
Democrats got all sort of dressed up, if you would, and says:
We're going to have due process protection for the President
and good fairness throughout this.
This is the only committee in which the President would
even have a possibility.
But no offense to you, the law professors. The President
has nothing to ask you. You're not going to provide anything he
can't read, and his attorneys have nothing to ask. Put
witnesses in here that can be fact witnesses who can be
actually cross-examined. That's fairness, and every attorney on
this panel knows that. This is a sham.
But you know what I also see here is quotes like this:
There must never be a narrowly voted impeachment or an
impeachment supported by one of our major political parties or
imposed by another. Such an impeachment will produce
decisiveness, bitterness, and politics for years to come and
will call into question the very legitimacy of our political
institutions.
The American people are watching. They will not forget. You
have the votes. You may have the muscle, but you do not have
legitimacy of a national consensus or of a constitutional
imperative. The partisan coup d'etat will go down in infamy in
the history of the Nation.
How about this one? I think the key point is that the
Republicans are still running a railroad job with no attempt at
fair procedure. And today, when the Democrats offered
amendments, offered motions in committee to say we should first
discuss and adopt standards so that we know what we're dealing
with, standards for impeachment that was voted down or ruled
out of order; when we say the important thing is to start
looking at the question before we simply have a vote with no
inquiry first, that was voted down and ruled out of order. So,
frankly, the whole question of what materials should be
released and what is secondary, but that's all we discussed.
The essential question--and here it is--which is to set up a
fair process as to whether the country put this country through
an impeachment proceeding. That was ruled out of order. The
Republicans refused to let us discuss it.
Those were all Chairman Nadler before he was chairman. I
guess 20 years makes a difference.
It's an interesting time. We're having a factless
impeachment. You just heard a one-sided presentation of facts
about this President. Today, we will present the other side,
which gets so conveniently left out. Remember fairness does
dictate that, but maybe not here because we're not scheduling
anything else.
I have a Democratic majority who has poll tested what they
think they ought to call what the President they think he did.
Wow. That's not following the facts. We have just a deep-seated
hatred of a man who came to the White House and did what he
said he was going do. The most amazing question I got in first
3 months of this gentleman's Presidency from reporters was
this: Can you believe he's putting forward those ideas?
I said: Yes, he ran on them. He told the truth, and he did
what he said.
The problem here today is this will also be one of the
first impeachments--the chairman mentioned there was two of
them, one that before he resigned before and then the one in
Clinton--in which the facts even by Democrats and Republicans
were not really disputed. In this one, they're not only
disputed; they're counterdictive of each other. There are no
set facts here. In fact, they're not anything that presents an
impeachment here, except a President carrying out his job in
the way the Constitution saw that he sees fit to do it. This is
where we're at today.
So the interesting thing that I come to with most everybody
here is this may be a new time, a new place, and we may be all
scrubbed up and looking pretty for impeachment, but this is not
an impeachment. This is just a simple railroad job, and today's
is a waste of time because this is where we're at.
So I close today with this. It didn't start with Mueller.
It didn't start with a phone call. You know where this started?
It started with tears in Brooklyn in November 2016, when an
election was lost. So we are here, no plan, no fact witnesses,
simply being a rubber stamp for what we have; but, hey, we got
law professors here. What a start of a party.
Mr. Chairman, before I yield back, I have a motion. Under
clause 2, rule XI.
Chairman Nadler. The gentleman is recognized for the
purpose of an opening statement, not for the purpose of making
a motion.
Mr. Collins. I yield back and now ask for the recognition
under clause 2, rule XI.
Chairman Nadler. The gentleman is recognized.
Mr. Collins. Mr. Chairman, pursuant to clause 2 of rule XI,
I move to require the attendance and testimony of Chairman
Schiff before this committee and transmit this letter
accordingly.
Chairman Nadler. For what purposes does the gentlelady seek
recognition?
Ms. Lofgren. I move to table the motion.
Chairman Nadler. The motion to table is made and not
debatable.
All in favor of the motion to table, say aye.
Opposed, no.
The motion to table is agreed to.
Mr. Collins. Recorded vote.
Chairman Nadler. A recorded vote is requested. The clerk
will call the roll.
Mr. Collins. Parliamentary inquiry, Mr. Chairman.
Chairman Nadler. The clerk will call the roll.
Mr. Collins. Parliamentary inquiry, Mr. Chairman.
Chairman Nadler. You're not recognized for parliamentary
inquiry at this time. There's a vote in process.
Mr. Collins. Just a reminder, any ``no'' votes mean you
don't want Chairman Schiff coming, correct?
Chairman Nadler. The clerk will call the roll.
Ms. Strasser. Mr. Nadler?
Chairman Nadler. Aye.
Ms. Strasser. Mr. Nadler votes aye.
Ms. Lofgren?
Ms. Lofgren. Aye.
Ms. Strasser. Ms. Lofgren votes aye.
Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
Ms. Strasser. Ms. Jackson Lee votes aye.
Mr. Cohen?
Mr. Cohen. Aye.
Ms. Strasser. Mr. Cohen votes aye.
Mr. Johnson of Georgia?
Mr. Johnson of Georgia. Aye.
Ms. Strasser. Mr. Johnson of Georgia votes aye.
Mr. Deutch?
Mr. Deutch. Aye.
Ms. Strasser. Mr. Deutch votes aye.
Ms. Bass?
[No response.]
Ms. Strasser. Mr. Richmond?
Mr. Richmond. Yes.
Ms. Strasser. Mr. Richmond votes yes.
Mr. Jeffries?
Mr. Jeffries. Aye.
Ms. Strasser. Mr. Jeffries votes aye.
Mr. Cicilline?
Mr. Cicilline. Aye.
Ms. Strasser. Mr. Cicilline votes aye.
Mr. Swalwell?
Mr. Swalwell. Yes.
Ms. Strasser. Mr. Swalwell votes yes.
Mr. Lieu?
Mr. Lieu. Aye.
Ms. Strasser. Mr. Lieu votes aye.
Mr. Raskin?
Mr. Raskin. Aye.
Ms. Strasser. Mr. Raskin votes aye.
Ms. Jayapal?
Ms. Jayapal. Aye.
Ms. Strasser. Ms. Jayapal votes aye.
Mrs. Demings?
Mrs. Demings. Aye.
Ms. Strasser. Mrs. Demings votes aye.
Mr. Correa?
Mr. Correa. Aye.
Ms. Strasser. Mr. Correa votes aye.
Ms. Scanlon?
Ms. Scanlon. Aye.
Ms. Strasser. Ms. Scanlon votes aye.
Ms. Garcia?
Ms. Garcia. Aye.
Ms. Strasser. Ms. Garcia votes aye.
Mr. Neguse?
Mr. Neguse. Aye.
Ms. Strasser. Mr. Neguse votes aye.
Mrs. McBath?
Mrs. McBath. Aye.
Ms. Strasser. Mrs. McBath votes aye.
Mr. Stanton?
Mr. Stanton. Aye.
Ms. Strasser. Mr. Stanton votes aye.
Ms. Dean?
Ms. Dean. Aye.
Ms. Strasser. Ms. Dean votes aye.
Ms. Mucarsel-Powell?
Ms. Mucarsel-Powell. Aye.
Ms. Strasser. Ms. Mucarsel-Powell votes aye.
Ms. Escobar?
Ms. Escobar. Aye.
Ms. Strasser. Ms. Escobar votes aye.
Mr. Collins?
Mr. Collins. No.
Ms. Strasser. Mr. Collins votes no.
Mr. Sensenbrenner?
Mr. Sensenbrenner. No.
Ms. Strasser. Mr. Sensenbrenner votes no.
Mr. Chabot?
Mr. Chabot. No.
Ms. Strasser. Mr. Chabot votes no.
Mr. Gohmert?
Mr. Gohmert. No.
Ms. Strasser. Mr. Gohmert votes no.
Mr. Jordan?
Mr. Jordan. No.
Ms. Strasser. Mr. Jordan votes no.
Mr. Buck?
Mr. Buck. No.
Ms. Strasser. Mr. Buck votes no.
Mr. Ratcliffe?
Mr. Ratcliffe. No.
Ms. Strasser. Mr. Ratcliffe votes no.
Mrs. Roby?
Mrs. Roby. No.
Ms. Strasser. Ms. Roby votes no.
Mr. Gaetz?
Mr. Gaetz. No.
Ms. Strasser. Mr. Gaetz votes no.
Mr. Johnson of Louisiana?
Mr. Johnson of Louisiana. No.
Ms. Strasser. Mr. Johnson of Louisiana votes no.
Mr. Biggs?
Mr. Biggs. No.
Ms. Strasser. Mr. Biggs votes no.
Mr. McClintock?
Mr. McClintock. No.
Ms. Strasser. Mr. McClintock votes no.
Ms. Lesko?
Ms. Lesko. No.
Ms. Strasser. Ms. Lesko votes no.
Mr. Reschenthaler?
Mr. Reschenthaler. No.
Ms. Strasser. Mr. Reschenthaler votes no.
Mr. Cline?
Mr. Cline. No.
Ms. Strasser. Mr. Cline votes no.
Mr. Armstrong?
Mr. Armstrong. No.
Ms. Strasser. Mr. Armstrong votes no.
Mr. Steube?
Mr. Steube. No.
Ms. Strasser. Mr. Steube votes no.
Chairman Nadler. Everybody's voted--has everyone voted who
wishes to vote? Ms. Bass?
Ms. Bass. Aye.
Ms. Strasser. Ms. Bass votes aye.
Chairman Nadler. The clerk will report.
Ms. Strasser. Mr. Chairman, there are 24 ayes and 17 noes.
Chairman Nadler. The motion to table is agreed to.
Mr. Biggs. Mr. Chairman, I have a parliamentary inquiry.
Chairman Nadler. The gentleman will state his parliamentary
inquiry.
Mr. Biggs. Thank you, Mr. Chairman.
Clause (c)(2) of the Judiciary Committee's impeachment
inquiry procedures states that members of the committee can
raise objections relating to the admissibility of testimony and
evidence, but it doesn't say what rules apply to admissibility.
So I'm hoping you can explain to us what the objections may be
made under this clause and if you intend to use the Federal
Rules of Evidence.
Chairman Nadler. The gentleman will suspend. That is not a
proper parliamentary inquiry.
Mr. Collins. It is a proper parliamentary inquiry.
Chairman Nadler. It is not.
Mr. Biggs. I stated the rule.
Mr. Collins. He stated the rule, Mr. Chairman. You can
ignore it and not answer it, but you can't just say it's not a
proper parliamentary inquiry.
Mr. Biggs. I'm not asking for the application of the rule,
but for an explanation, Mr. Chairman. I don't know how that's
not parliamentary.
Chairman Nadler. We will apply the rules, period.
Mr. Biggs. You won't help us understand that? There's no
clarity there.
Mr. Collins. Which rule are you citing? How are citing
that?
Mr. Biggs. Clause (c)(2) of the Judiciary Committee's
impeachment inquiry procedures. How is that unclear?
Chairman Nadler. It's the rules of the House, and they will
be applied, period. That's the----
Mr. Biggs. I'm asking, how will they be applied here, sir?
Chairman Nadler. They will be applied according to the
rules.
Mr. Collins. But not answering your question.
Mr. Biggs. A circular response. Thank you.
Mr. Chairman, can you please also iterate the schedule
going forward? In other words, are they applying to additional
hearings, and if so, when----
Chairman Nadler. The gentleman will suspend. That is not a
proper parliamentary inquiry.
Without objection, all other opening statements will be
included in the record. I will now introduce today's witnesses.
Mr. Reschenthaler. Mr. Chairman----
Chairman Nadler. Noah Feldman----
Mr. Reschenthaler. Mr. Chairman, I seek recognition.
Chairman Nadler. The gentleman is--I am not going to
recognize you now. I am introducing the witnesses.
Noah Feldman is the Felix Frankfurter Professor of Law at
Harvard Law School. Professor Feldman has authored seven books,
including a biography of James Madison and the Constitutional
Law Casebook, as well as many essays and articles on
constitutional subjects.
Professor Feldman received his undergraduate degree from
Harvard College, a Doctor of Philosophy from Oxford University,
where he was also a Rhodes Scholar, and a J.D. from Yale Law
School. He also served as a law clerk to Justice David Souter
of the United States Supreme Court.
Pamela Karlan serves as the Kenneth and Harle Montgomery
Professor of Public Interest Law and the co-director of the
Supreme Court Litigation Clinic at Stanford Law School. She's
the coauthor of several leading casebooks, including a
monograph entitled ``Keeping Faith With the Constitution'' and
dozens of scholarly articles. She served as a law clerk to
Justice Harry Blackmun of the United States Supreme Court and
as a Deputy Assistant Attorney General in the Civil Rights
Division of the United States Department of Justice, where she
was responsible, among other things, for reviewing the work of
the Department's voting section. Professor Karlan earned three
degrees from Yale University, a B.A. in history, an M.A. in
history, and a J.D. from Yale Law School.
Michael Gerhardt is the Burton Craige Distinguished
Professor of Jurisprudence at the University of North Carolina
School of Law and director of UNC's Center for Law and
Government. Professor Gerhardt is the author of many books,
including ``The Federal Impeachment Process: A Constitutional
and Historical Analysis,'' as well as more than 50 law review
publications on a diverse range of topics in constitutional
law, Federal jurisdiction, and the legislative process. He
received his J.D. from the University of Chicago Law School,
his M.S. from the London School of Economics, and his B.A. from
Yale University.
Jonathan Turley is the J.B. and Maurice C. Shapiro Chair of
Public Interest Law at George Washington University Law School
where he teaches torts, criminal procedure, and constitutional
law. After a stint at Tulane Law School, Professor Turley
joined the GW law faculty in 1990 and, in 1998, became the
youngest chaired professor in the school's history. He has
written over three dozen academic articles for a variety of
leading law schools--of leading law journals--I'm sorry--and
his articles on legal and policy issues appear frequently in
national publications. A Chicago native, Professor Turley
earned degrees from the University of Chicago and Northwestern
University School of Law.
I will now--we welcome all our distinguished witnesses. We
thank them for participating in today's hearing. Now, if you
would please rise, I will begin by swearing you in.
Do you swear or affirm under penalty of perjury that the
testimony you're about to give is true and correct to the best
of your knowledge, information, and belief so help you God?
Let the record show the witnesses answered in the
affirmative. Thank you and please be seated.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in 10 minutes. To help you
stay within that time, there is a timing light on your table.
When the light switches from green to yellow, you have 1 minute
to conclude your testimony. When the light turns red, it
signals your 10 minutes have expired.
Professor Feldman, you may begin.
Mr. Feldman. Mr. Chairman, Mr. Chairman and members of the
committee----
Chairman Nadler. I don't think you're on the mic.
Mr. Armstrong. Mr. Chairman, before we begin----
Mr. Feldman. Mr. Chairman and members of the committee----
Mr. Armstrong. Mr. Chairman, I have a motion.
Chairman Nadler. The gentleman is not in order to offer a
motion at this time.
Mr. Armstrong. Mr. Chairman, I seek recognition for a
privilege motion.
Mr. Feldman. Mr. Chairman and members of the committee,
thank you very much for the opportunity to appear. My name is
Noah Feldman. I serve----
Chairman Nadler. The witness will proceed.
Mr. Feldman. I serve as the Felix Frankfurter Professor of
Law at the Harvard Law School.
Mr. Armstrong. I seek recognition for a motion.
Chairman Nadler. The gentleman will suspend. The time is
the witness'.
Mr. Collins. The privilege motion needs to be recognized.
You can call it not a privilege, but you need to be recognized.
Chairman Nadler. In between the witnesses, it may be
recognized, not once I recognize the witnesses.
Mr. Collins. So whenever you want to?
Chairman Nadler. The witness will proceed.
We'll entertain the motion after the first witness.
Mr. Collins. He started before he recognized.
TESTIMONY OF NOAH FELDMAN, FELIX FRANKFURTER PROFESSOR OF LAW
AND DIRECTOR, JULIS-RABINOWITZ PROGRAM ON JEWISH AND ISRAELI
LAW, HARVARD LAW SCHOOL; PAMELA S. KARLAN, KENNETH AND HARLE
MONTGOMERY PROFESSOR OF PUBLIC INTEREST LAW AND CO-DIRECTOR,
SUPREME COURT LITIGATION CLINIC, STANFORD LAW SCHOOL; MICHAEL
GERHARDT, BURTON CRAIGE DISTINGUISHED PROFESSOR OF
JURISPRUDENCE, THE UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW;
JONATHAN TURLEY, J.B. AND MAURICE C. SHAPIRO PROFESSOR OF
PUBLIC INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY LAW
SCHOOL.
TESTIMONY OF NOAH FELDMAN
Mr. Feldman. My job is to study and to teach the
Constitution from its origins until the present.
I'm here today to describe three things: why the Framers of
our Constitution included a provision for the impeachment of
the President; what that provision providing for impeachment
for high crimes and misdemeanors means; and, last, how it
applies to the question before you and before the American
people, whether President Trump has committed impeachable
offenses under the Constitution.
Let me begin by stating my conclusions. The Framers
provided for the impeachment of the President because they
feared that the President might abuse the power of his office
for personal benefit, to corrupt the electoral process and
ensure his reelection, or to subvert the national security of
the United States.
High crimes and misdemeanors are abuses of power and of
public trust connected to the office of the Presidency. On the
basis of the testimony and the evidence before the House,
President Trump has committed impeachable high crimes and
misdemeanors by corruptly abusing the office of the Presidency.
Specifically, President Trump has abused his office by
corruptly soliciting President Volodymyr Zelensky of Ukraine to
announce investigations of his political rivals in order to
gain personal advantage including in the 2020 Presidential
election.
Let me begin now with the question of why the Framers
provided for impeachment in the first place. The Framers
borrowed the concept of impeachment from England but with one
enormous difference. The House of Commons and the House of
Lords could use impeachment in order to limit the Ministers of
the King, but they could not impeach the King, and in that
sense, the King was above the law. In stark contrast, the
Framers from the very outset of the Constitutional Convention
in 1787 made it crystal clear that the President would be
subject to impeachment in order to demonstrate that the
President was subordinate to the law.
If you will, I would like you to think now about a specific
date in the Constitutional Convention, July 20, 1787. It was
the middle of a long, hot summer. And on that day, two members
of the Constitutional Convention actually moved to take out the
impeachment provision from the draft Constitution. And they had
a reason for that, and the reason was they said: Well, the
President will have to stand for reelection, and if the
President has to stand for reelection, that is enough. We don't
need a separate provision for impeachment.
When that proposal was made, significant disagreement
ensued. The Governor of North Carolina, a man called William
Davie, immediately said: If the President cannot be impeached,
quote, he will spare no efforts or means whatever to get
himself reelected.
Following Davie, George Mason of Virginia, a fierce
Republican critic of executive power, said: No point is more
important than that impeachment be included in the
Constitution. Shall any man be above justice, he asked, thus
expressing the core concern that the President must be
subordinate to the law and not above the law.
James Madison, the principal draftsman of the U.S.
Constitution, then spoke up. He said it was, quote,
indispensable that some provision be made for impeachment. Why?
Because, he explained, standing for reelection was, quote, not
a sufficient security, close quote, against Presidential
misconduct or corruption. A President, he said, might betray
his trust to foreign powers. A President who in a corrupt
fashion abused the office of the Presidency, said James
Madison, quote, might be fatal to the Republic, close quote.
And then a remarkable thing happened in the Convention.
Gouverneur Morris of Pennsylvania, one of the two people who
had introduced the motion to eliminate impeachment from the
Constitution, got up and actually said the words ``I was
wrong.'' He told the other Framers present that he had changed
his mind on the basis of the debate on July 20th and that it
was now his opinion that, in order to avoid corruption of the
electoral process, a President would have to be subject to
impeachment, regardless of the availability of a further
election.
The upshot of this debate is that the Framers kept
impeachment in the Constitution specifically in order to
protect against the abuse of office with the capacity to
corrupt the electoral process or lead to personal gain.
Now, turning to the language of the Constitution, the
Framers used the words ``high crimes and misdemeanors'' to
describe those forms of action that they considered
impeachable. These were not vague or abstract terms to the
Framers. High crimes and misdemeanors was very--the words
``high crimes and misdemeanors'' represented very specific
language that was well understood by the entire generation of
the Framers. Indeed, they were borrowed from an impeachment
trial in England that was taking place as the Framers were
speaking, which was referred to, in fact, by George Mason. The
words ``high crimes and misdemeanors'' referred to abuse of the
office of the Presidency for personal advantage or to corrupt
the electoral process or to subvert the national security of
the United States.
There's no mystery about the words ``high crimes and
misdemeanors.'' The word ``high'' modifies both crimes and
misdemeanors. So they're both high. And ``high'' means
connected to the office of the Presidency, connected to office.
The classic form that was familiar to the Framers was the
abuse of office for personal gain or advantage. And when the
Framers specifically named bribery as a high crime and
misdemeanor, they were naming one particular version of this
abuse of office, the abuse of office for personal or individual
gain. The other forms of abuse of office, abuse of office to
affect elections and abuse of office to compromise national
security, were further forms that were familiar to the Framers.
Now how does this language of high crimes and misdemeanors
apply to President Trump's alleged conduct? Let me be clear.
The Constitution gives the House of Representatives, that is,
the members of this committee and the other members of the
House, quote, sole power of impeachment. It's not my
responsibility or my job to determine the credibility of the
witnesses who appeared before the House thus far. That is your
constitutional responsibility. My comments will, therefore,
follow my role which is to describe and apply the meaning of
impeachable offenses to the facts described by the testimony
and evidence before the House.
President Trump's conduct as described in the testimony and
evidence clearly constitutes impeachable high crimes and
misdemeanors under the Constitution. In particular, the
memorandum and other testimony relating to the July 25, 2019,
phone call between the two Presidents, President Trump and
President Zelensky, more than sufficiently indicates that
President Trump abused his office by soliciting the President
of Ukraine to investigate his political rivals in order to gain
personal political advantage, including in relation to the 2020
election.
Again, the words ``abuse of office'' are not mystical or
magical. They are very clear. The abuse of office occurs when
the President uses a feature of his power, the awesome power of
his office, not to serve the interests of the American public
but to serve his personal, individual partisan electoral
interests. That is what the evidence before the House
indicates.
Finally, let me be clear that on its own soliciting the
leader of a foreign government in order to announce
investigations of political rivals and perform those
investigations would constitute a high crime and misdemeanor.
But the House also has evidence before it that the President
committed two further acts that also qualify as high crimes and
misdemeanors. In particular, the House heard evidence that the
President placed a hold on critical U.S. aid to Ukraine and
conditioned its release on announcement of the investigations
of the Bidens and of the discredited CrowdStrike conspiracy
theory. Furthermore, the House also heard evidence that the
President conditioned a White House visit desperately sought by
the Ukrainian President on announcement of the investigations.
Both of these acts constitute impeachable high crimes and
misdemeanors under the Constitution. They each encapsulate the
Framers' worry that the President of the United States would
take any means whatever to ensure his reelection, and that is
the reason that the Framers provided for impeachment in a case
like this one.
[The statement of Mr. Feldman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Armstrong. Mr. Chairman, I seek----
Chairman Nadler. The gentleman's time has expired.
Mr. Armstrong. Mr. Chairman, I seek recognition.
Chairman Nadler. The gentleman's recognized.
Mr. Armstrong. I offer a motion to postpone to a date
certain.
Ms. Lofgren. I move to table the motion.
Chairman Nadler. The motion to table is heard and is not
debatable. All in favor of the motion----
Mr. Sensenbrenner. Mr. Chairman----
Chairman Nadler. All in favor----
Mr. Sensenbrenner. Mr. Chairman, may we have the motion
read, please?
Chairman Nadler. The motion was stated as to adjourn to----
Mr. Sensenbrenner. May we have the motion read, please?
Chairman Nadler. The motion will be read as to what date.
Mr. Armstrong. The motion to be read to a date certain,
Wednesday, December 11, 2019, so we can actually get a response
to the six letters we've----
Chairman Nadler. The gentleman has stated his motion.
The motion to table is made.
Ms. Lofgren. Correct.
Chairman Nadler. The motion is made and not debatable.
All in favor say aye.
Opposed, no.
The motion to table is agreed to.
Mr. Armstrong. Roll call.
Chairman Nadler. A roll call is requested. The clerk will
call the roll.
Ms. Strasser. Mr. Nadler?
Chairman Nadler. Aye.
Ms. Strasser. Mr. Nadler votes aye.
Ms. Lofgren?
Ms. Lofgren. Aye.
Ms. Strasser. Ms. Lofgren votes aye.
Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
Ms. Strasser. Ms. Jackson Lee votes aye.
Mr. Cohen?
Mr. Cohen. Aye.
Ms. Strasser. Mr. Cohen votes aye.
Mr. Johnson of Georgia?
Mr. Johnson of Georgia. Aye.
Ms. Strasser. Mr. Johnson of Georgia votes aye.
Mr. Deutch?
Mr. Deutch. Aye.
Ms. Strasser. Mr. Deutch votes aye.
Ms. Bass?
Ms. Bass. Aye.
Ms. Strasser. Ms. Bass votes aye.
Mr. Richmond?
Mr. Richmond. Yes.
Ms. Strasser. Mr. Richmond votes yes.
Mr. Jeffries?
Mr. Jeffries. Aye.
Ms. Strasser. Mr. Jeffries votes aye.
Mr. Cicilline?
Mr. Cicilline. Aye.
Ms. Strasser. Mr. Cicilline votes aye.
Mr. Swalwell?
Mr. Swalwell. Yes.
Ms. Strasser. Mr. Swalwell votes yes.
Mr. Lieu?
Mr. Lieu. Aye.
Ms. Strasser. Mr. Lieu votes aye.
Mr. Raskin?
Mr. Raskin. Aye.
Ms. Strasser. Mr. Raskin votes aye.
Ms. Jayapal?
Ms. Jayapal. Aye.
Ms. Strasser. Ms. Jayapal votes aye.
Mrs. Demings?
Mrs. Demings. Aye.
Ms. Strasser. Mrs. Demings votes aye.
Mr. Correa?
Mr. Correa. Aye.
Ms. Strasser. Mr. Correa votes aye.
Ms. Scanlon?
Ms. Scanlon. Aye.
Ms. Strasser. Ms. Scanlon votes aye.
Ms. Garcia?
Ms. Garcia. Aye.
Ms. Strasser. Ms. Garcia votes aye.
Mr. Neguse?
Mr. Neguse. Aye.
Ms. Strasser. Mr. Neguse votes aye.
Mrs. McBath?
Mrs. McBath. Aye.
Ms. Strasser. Mrs. McBath votes aye.
Mr. Stanton?
Mr. Stanton. Aye.
Ms. Strasser. Mr. Stanton votes aye.
Ms. Dean?
Ms. Dean. Aye.
Ms. Strasser. Ms. Dean votes aye.
Ms. Mucarsel-Powell?
Ms. Mucarsel-Powell. Aye.
Ms. Strasser. Ms. Mucarsel-Powell votes aye.
Ms. Escobar?
Ms. Escobar. Aye.
Ms. Strasser. Ms. Escobar votes aye.
Mr. Collins?
Mr. Collins. No.
Ms. Strasser. Mr. Collins votes no.
Mr. Sensenbrenner?
Mr. Sensenbrenner. No.
Ms. Strasser. Mr. Sensenbrenner votes no.
Mr. Chabot?
Mr. Chabot. No.
Ms. Strasser. Mr. Chabot votes no.
Mr. Gohmert?
Mr. Gohmert. No.
Ms. Strasser. Mr. Gohmert votes no.
Mr. Jordan?
Mr. Jordan. No.
Ms. Strasser. Mr. Jordan votes no.
Mr. Buck?
Mr. Buck. No.
Ms. Strasser. Mr. Buck votes no.
Mr. Ratcliffe?
Mr. Ratcliffe. No.
Ms. Strasser. Mr. Ratcliffe votes no.
Mrs. Roby?
Mrs. Roby. No.
Ms. Strasser. Mrs. Roby votes no.
Mr. Gaetz?
Mr. Gaetz. No.
Ms. Strasser. Mr. Gaetz votes no.
Mr. Johnson of Louisiana?
Mr. Johnson of Louisiana. No.
Ms. Strasser. Mr. Johnson of Louisiana votes no.
Mr. Biggs?
Mr. Biggs. No.
Ms. Strasser. Mr. Biggs votes no.
Mr. McClintock?
Mr. McClintock. No.
Ms. Strasser. Mr. McClintock votes no.
Mrs. Lesko?
Mrs. Lesko. No.
Ms. Strasser. Mrs. Lesko votes no.
Mr. Reschenthaler?
Mr. Reschenthaler. No.
Ms. Strasser. Mr. Reschenthaler votes no.
Mr. Cline?
Mr. Cline. No.
Ms. Strasser. Mr. Cline votes no.
Mr. Armstrong?
Mr. Armstrong. No.
Ms. Strasser. Mr. Armstrong votes no.
Mr. Steube?
Mr. Steube. No.
Ms. Strasser. Mr. Steube votes no.
Chairman Nadler. Has everyone voted who wishes to vote?
The clerk will report.
Ms. Strasser. Mr. Chairman, there are 24 ayes and 17 noes.
Chairman Nadler. The motion to table is adopted.
I now recognize Professor Karlan for her testimony.
TESTIMONY OF PAMELA S. KARLAN
Ms. Karlan. Mr. Chairman and members of the committee,
thank you so much for the opportunity to testify. Twice I have
had the privilege of representing this committee and its
leadership in voting rights cases before the Supreme Court,
once when it was under the leadership of Chairman
Sensenbrenner--it's good to see you again, sir--and with Mr.
Chabot as one of my other clients, and once under leadership of
Chairman Conyers. It was a great honor for me to represent this
committee because of this committee's key role over the past 50
years in ensuring that American citizens have the right to vote
in free and fair elections.
Today, you're being asked to consider whether protecting
those elections requires impeaching a President. That is an
awesome responsibility, that everything I know about our
Constitution and its values and my review of the evidentiary
record--and 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. So I'm insulted by
the suggestion that, as a law professor, I don't care about
those facts. But everything I read on those occasions tells me
that when President Trump invited--indeed, demanded--foreign
involvement in our upcoming election, he struck at the very
heart of what makes this a republic to which we pledge
allegiance. That demand as, Professor Feldman just explained,
constituted an abuse of power.
Indeed, as I want to explain in my testimony, 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.
So it is hardly surprising that the Constitution is marbled
with provisions governing elections and guaranteeing
governmental accountability. Indeed, a majority of the
amendments to our Constitution since the Civil War have dealt
with voting or with terms of office. And among the most
important provisions of our original Constitution is the
guarantee of periodic elections for the Presidency, one every 4
years.
America has kept that promise for more than two centuries,
and it has done so even during wartime. For example, we
invented the idea of absentee voting so that Union troops who
supported President Lincoln could stay in the field during the
election of 1864. And, since then, countless other Americans
have fought and died to protect our right to vote.
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 the impeachment power
was a risk that unscrupulous officials might try to rig the
election process. Now you've already heard two people give
William Davie his props. You know, Hamilton got a whole
musical, and William Davie is just going to get this committee
hearing, but he warned that, unless the Constitution contained
an impeachment provision, a President might spare no efforts or
means whatsoever to get himself reelected. 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 Mason was the person responsible for adding high crimes
and misdemeanors to the list of impeachable offenses. So we
know from that that the list was designed to reach a President
who acts to subvert an election, whether that election is the
one that brought him into office or it's an upcoming election
where he seeks an additional 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 during the ratification
expressed concern with the very idea of having 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.'' And he
explained that this was in part because foreign governments
would try and foment disagreement among the American people and
influence what we thought.
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 list of impeachable offenses
that the Framers included in the Constitution shows that the
essence of an impeachable offense is a President's decision to
sacrifice the national interest for his own private ends.
Treason, the first thing listed, lay in an individual's
giving aid to a foreign enemy, that is, putting a foreign enemy
adversary's interests above the interests of the United States.
Bribery occurred when an official solicited, received, or
offered a personal favor or benefit to influence official
action, risking that he would put his private welfare above the
national interest. And high crimes and misdemeanors captured
the other ways in which a high official might, as Justice
Joseph Story explained, disregard public interests in the
discharge in the duties of political office.
Based on the evidentiary record before you, what has
happened in the case today is something that I do not think we
have ever seen before, a President who has doubled down on
violating his oath to faithfully execute the laws and to
protect and defend the Constitution. The evidence reveals a
President who used the powers of his office to demand that a
foreign government participate in undermining a competing
candidate for the Presidency.
As President John Kennedy declared, ``the right to vote in
a free American election is the most powerful and precious
right in the world,'' but our elections become less free when
they are distorted by foreign interference. What happened in
2016 was bad enough. There is widespread agreement that Russian
operatives intervened to manipulate our political process, but
that distortion is magnified if a sitting President abuses the
powers of his office actually to invite foreign intervention.
To see why, imagine living in a part of Louisiana or Texas
that's prone to devastating hurricanes and flooding. 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 to do you--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''? Wouldn't you
know in your gut that such a President had abused his office,
that he betrayed the national interests, and that he was trying
to corrupt the electoral process?
I believe that the evidentiary record shows wrongful acts
on that scale here. It shows a President who delayed meeting a
foreign leader and providing assistance that Congress and his
own advisers agreed serves our national interests in promoting
democracy and in limiting Russian aggression, saying, ``Russia,
if you're listening''--you know, a President who cared about
the Constitution would say: Russia, if you're listening, butt
out of our elections.
And it shows a President who did this to strong arm a
foreign leader into smearing one of the President's opponents
in our ongoing election season.
That's not politics as usual, at least not in the United
States or not in any mature democracy. It is instead a cardinal
reason why the Constitution contains an impeachment power. Put
simply, a President should resist foreign interference in our
elections, not demand it and not welcome it. If we are to keep
faith with our Constitution and with our republic, President
Trump must be held to account.
Thank you.
[The statement of Ms. Karlan follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. Thank you.
Professor Gerhardt.
TESTIMONY OF MICHAEL GERHARDT
Mr. Gerhardt. Thank you, Mr. Chairman, Ranking Member,
other distinguish members of the committee.
It's an honor and a privilege to join the other
distinguished witnesses to discuss a matter of grave concern to
our country and to our Constitution. Because this House, the
people's House, has the sole power of impeachment, there is no
better forum to discuss the constitutional standard for
impeachment and whether that standard has been met in the case
of the current President of the United States.
As I explain in the remainder and balance of my opening
statement, the record compiled thus far shows the President has
committed several impeachable offenses, including bribery,
abuse of power, and soliciting of personal favor from a foreign
leader to benefit himself personally, obstructing justice, and
obstructing Congress.
Our hearing today should serve as a reminder of one of the
fundamental principles that drove the Founders of our
Constitution to break from England and to draft their own
Constitution, the principle that, in this country, no one is
King. We have followed that principle since before the founding
of the Constitution. And it is recognized around the world as a
fixed, inspiring American ideal.
In his third message to Congress in 1903, President
Theodore Roosevelt delivered one of the finest articulations of
this principle. He said: No one is above the law, and no man is
below, nor do we ask any man's permission when we require him
to obey it. Obedience to the law is demanded as a right, not
asked for as a favor.
Three features of our Constitution protect the fundamental
principle that no one, not even the President, is above the
law. First, in the British system, the public had no choice
over the monarch who ruled them. In our Constitution, the
Framers allowed elections to serve as a crucial means for
ensuring Presidential accountability.
Second, in the British system, the King could do no wrong.
And no other parts of the government could check his
misconduct. In our Constitution, the Framers developed the
concept of separation of powers, which consists of checks and
balances designed to prevent any branch, including the
Presidency, from becoming tyrannical.
Third, in the British system, everyone but the King was
impeachable. Our Framers' generation pledged their lives and
fortunes to rebel against a monarch whom they saw as corrupt,
tyrannical, and entitled to do no wrong.
In our Declaration of Independence, the Framers set forth a
series of impeachable offenses that the King had committed
against the American colonists. When the Framers later convened
in Philadelphia to draft our Constitution, they were united
around a simple indisputable principle that was a major
safeguard for the public. We, the people, against tyranny of
any kind, 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. The Framers created a
chief executive to bring energy to the administration of
Federal laws but to be accountable to Congress for treason,
bribery, or other high crimes and misdemeanors.
The Framers' concern about the need to protect against a
corrupt President was evident throughout the Convention. And
here I must thank my prior two friends who have spoken and
referred to a North Carolinian, William Davie. I will refer to
another North Carolinian in the Constitutional Convention,
James Iredell, whom President Washington later appointed to the
Supreme Court, assured his fellow delegates the President,
quote, is of a very different nature from a monarch. He is to
be personally responsible for any abuse of the great trust
placed in him, unquote.
This brings us, of course, to the crucial question we're
here to talk about today: the standard for impeachment. The
Constitution defines treason, and the term ``bribery''
basically means using an office for personal gain, or I should
say misusing office for personal gain.
As Professor Feldman pointed out, these terms derive from
the British who understood the class of cases that would be
impeachable to refer to political crimes, which included great
offenses against the United States, attempts to subvert the
Constitution, when the President deviates from his duty, or
dares to abuse the power invested in him by the people,
breaches the public trust, and serious injuries to the
Republic.
In his influential essay in The Federalist Papers,
Alexander Hamilton declared that impeachable offenses are those
offenses which proceed from the misconduct of public men or, in
other words, the abuse or violation of some public trust and
relate chiefly to injuries done immediately to the society
itself.
Several themes emerge from the Framers' discussion of the
scope of the impeachable offenses and impeachable practice. We
know that not all impeachment offenses are criminal, and we
know that not all felonies are impeachable offenses. We know
further that what matters in determining whether particular
misconduct constitutes a high crime and misdemeanor is
ultimately the context and the gravity of the misconduct in
question.
After reviewing the evidence that's been made public, I
cannot help but conclude that this President has attacked each
of the Constitution's safeguards against establishing a
monarchy in this country. Both the context and gravity of the
President's misconduct are clear. The favor he requested from
Ukraine's President was to receive, in exchange for his use of
Presidential power, Ukraine's announcement of a criminal
investigation of a political rival. The investigation was not
the important action for the President. The announcement was,
because it could then be used in this country to manipulate the
public into casting aside the President's political rival
because of concerns about his corruption.
Mr. Gerhardt. The gravity of the President's misconduct is
apparent when we compare it to the misconduct of the one
President who resigned from office to avoid impeachment,
conviction, and removal.
The House Judiciary Committee in 1974 approved three
articles of impeachment against Richard Nixon who resigned a
few days later. The first article charged him with obstruction
of justice.
If you read the Mueller report, it identifies a number of
facts--I won't lay them out here right now--that suggest the
President himself has obstructed justice. If you look at the
second article of impeachment approved against Richard Nixon,
it charged him with abuse of power for ordering the heads of
the FBI, IRS, and CIA to harass his political enemies.
In the present circumstance, the President is engaged in a
pattern of abusing the trust placed in him by the American
people by soliciting foreign countries, including China,
Russia, and Ukraine to investigate his political opponents and
interfere on his behalf in elections in which he is a
candidate.
The third article approved against President Nixon charged
that he had failed to comply with four legislative subpoenas.
In the present circumstance, the President has refused to
comply with and directed at least ten others in his
administration not to comply with lawful congressional
subpoenas, including Secretary of State Mike Pompeo, Energy
Secretary Rick Perry, and acting chief of staff and head of the
Office of Management and Budget Mick Mulvaney.
As Senator Lindsey Graham, now chair of the Senate
Judiciary Committee, said, when he was a Member of the House on
the verge of impeaching President Clinton, ``The day Richard
Nixon failed to answer that subpoena is the day he was subject
to impeachment because he took the power from Congress over the
impeachment process away from Congress and he became the judge
and jury.'' That is a perfectly good articulation of why
obstruction of Congress is impeachable.
The President's defiance of Congress is all the more
troubling due to the rationale he claims for his obstruction.
His arguments and those of his subordinates, including his
White House counsel, in his October 8th letter to the Speaker
and three committee chairs, boils down to the assertion that he
is above the law.
I won't reread that letter here, but I do want to disagree
with the characterization in the letter of these proceedings,
since the Constitution expressly says, and the Supreme Court
has unanimously affirmed, that the House has the sole power of
impeachment that like the Senate the House has the power to
determine the rules for its proceedings.
The President and his subordinates have argued further that
the President is entitled to absolute immunity from criminal
procedure, even investigation for any criminal wrongdoing,
including shooting someone on 5th Avenue. The President has
claimed further he's entitled to absolute executive privilege
not to share any information he doesn't want to share with
another branch.
He's also claimed the entitlement to be able to order the
executive branch--as he's done--not to cooperate with this body
when it conducts an investigation of the President. If left
unchecked, the President will likely continue his pattern of
soliciting foreign interference on behalf of the next election
and, of course, his obstruction of Congress.
The fact that we can easily transpose the articles of
impeachment against President Nixon onto the actions of this
President speaks volumes, and that does not even include the
most serious national security concerns and election
interference concerns at the heart of this President's
misconduct.
No misconduct is more antithetical to our democracy, and
nothing injures the American people more than a President who
uses his power to weaken their authority under the Constitution
as well as the authority of the Constitution itself.
May I read one more sentence or--I'm sorry.
Chairman Nadler. The witness may have another sentence or
two.
Mr. Gerhardt. Thank you. 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. And,
therefore, I stand with the Constitution, and I stand with the
Framers who were committed to ensure that no one is above the
law.
[The statement of Mr. Gerhardt follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. Thank you, Professor.
Professor Turley.
TESTIMONY OF PROFESSOR JONATHAN TURLEY
Mr. Turley. Thank you. Chairman Nadler, Ranking Member
Collins, members of the Judiciary Committee, it's an honor to
appear before you today to discuss one of the most
consequential functions you were given by the Framers, and that
is the impeachment of a President of the United States.
Twenty-one years ago I sat before you, Chairman Nadler, and
this committee, to testify at the impeachment of President
William Jefferson Clinton. I never thought that I would have to
appear a second time to address the same question with regard
to another sitting President, yet here we are.
The elements are strikingly similar. The intense rancor and
rage of the public debate is the same. The atmosphere that the
Framers anticipated, the stifling intolerance of opposing
views, is the same. I'd like to start therefore, perhaps
incongruously, by stating an irrelevant fact: I'm not a
supporter of President Trump. I voted against him. My personal
views of President Trump are as irrelevant to my impeachment
testimony as they should be to your impeachment vote.
President Trump will not be our last President. And what we
leave in the wake of this scandal will shape our democracy for
generations to come. I'm concerned about lowering impeachment
standards to fit a paucity of evidence and an abundance of
anger. I believe this impeachment not only fails to satisfy the
standard of past impeachments but would create a dangerous
precedent for future impeachments.
My testimony lays out the history of impeachment from early
English cases to colonial cases to the present day. The early
impeachments were raw political exercises using fluid
definitions of criminal and noncriminal acts. When the Framers
met in Philadelphia they were quite familiar with impeachment
and its abuses, including the Hastings case, which was
discussed in the convention, a case that was still pending for
trial in England.
Unlike the English impeachments, the American model was
more limited not only in its application to judicial and
executive officials but its grounds. The Framers rejected a
proposal to add maladministration because Madison objected that
so vague a term would be equivalent to a tenure during the
pleasure of the Senate.
In the end, various standards that had been used in the
past were rejected, corruption, obtaining office by improper
means, betraying the trust of a foreign--to a foreign power,
negligence, perfidy, peculation, and oppression. Perfidy, or
lying, and peculation, self-dealing, are particularly
irrelevant to our current controversy.
My testimony explores the impeachment cases of Nixon,
Johnson, and Clinton. The closest of these three cases is to
the 1868 impeachment of Andrew Johnson. It is not a model or an
association that this committee should relish. In that case, a
group of opponents of the Presidents, called the ``Radical
Republicans,'' created a trap-door crime in order to impeach
the President. They even defined it as a high misdemeanor.
There was another shared aspect besides the atmosphere of
that impeachment and also the unconventional style of the two
Presidents, and that shared element is speed. This impeachment
would rival the Johnson impeachment as the shortest in history,
depending on how one counts the relevant days.
Now, there are three distinctions when you look at these--
or three commonalties when you look at these past cases. All
involved established crimes. This would be the first
impeachment in history where there would be considerable
debate, and in my view, not compelling evidence of the
commission of a crime.
Second, is the abbreviated period of this investigation,
which is problematic and puzzling. This is a facially
incomplete and inadequate record in order to impeach a
President.
Allow me to be candid in my closing remarks because we have
limited time. We are living in the very period described by
Alexander Hamilton, a period of agitated passions. I get it.
You're mad. The President is mad. My Republican friends are
mad. My Democratic friends are mad. My wife is mad. My kids are
mad. Even my dog seems mad, and Luna is a Goldendoodle and they
don't get mad.
So we're all mad. Where has that taken us? Will a slip-shot
impeachment make us less mad? Will it only invite an invitation
for the madness to follow every future administration? That is
why this is wrong. It's not wrong because President Trump is
right. His call was anything but perfect. It's not wrong
because the House has no legitimate reason to investigate the
Ukrainian controversy. It's not wrong because we're in an
election year. There is no good time for an impeachment.
No, it's wrong because this is not how you impeach an
American President. This case is not a case of the unknowable.
It's a case of the peripheral. We have a record of conflicts,
defenses that have not been fully considered, un-subpoenaed
witness with material evidence.
To impeach a President on this record would expose every
future President to the same type of inchoate impeachment.
Principle often takes us to a place we would prefer not to be.
That was the place seven Republicans found themselves in the
Johnson trial when they saved a President from acquittal that
they despised. For generations they even celebrated his
profiles of courage.
Senator Edmund Ross said it was like looking down into his
open grave, and then he jumped because he didn't have any
alternative. It's easy to celebrate those people from the
distance of time and circumstance in an age of rage. It's
appealing to listen to those saying, forget the definitions of
crimes. Just do it, like this is some impulse buy Nike sneaker.
You can certainly do that. You can declare the definitions
of crimes alleged are immaterial and just an exercise of
politics, not the law. However, those legal definitions and
standards, which I've addressed in my testimony, are the very
thing that divide rage from reason.
This all brings up to me--and I will conclude with this--of
a scene from ``A Man for All Seasons'' by--with Sir Thomas More
when his son-in-law, William Roper, put the law--suggested that
More was putting the law ahead of morality.
He said, More would give the devil the benefit of the law.
When More asks Roper would he instead cut a great road through
the law to get after the devil? Roper proudly declares, yes,
I'd cut down every law of England to do that. More responds,
and when the last law is cut down and the devil turned around
on you, where would you hide, Roper, all the laws being flat?
He said, this country is planted thick with laws from coast
to coast, man's laws, not God's. And if you cut them down, and
you're just the man to do it, do you really think you could
stand upright in the winds that would blow then? And he
finished by saying, yes, I'd give the devil the benefit of the
law for my own sake.
So I will conclude with this: Both sides of this
controversy have demonized the other to justify any measure in
their defense, much like Roper. Perhaps that's the saddest part
of all of this. We have forgotten the common article of faith
that binds each of us to each other in our Constitution.
However, before we cut down the tree so carefully planted
by the Framers, I hope you will consider what you will do when
the wind blows again, perhaps for a Democratic President. Where
will you stand then when all the laws being flat?
Thank you again for the honor of testifying today, and I'd
be happy to answer any questions.
[The statement of Mr. Turley follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. I thank the witnesses.
Mr. Reschenthaler. Mr. Chairman, I seek recognition.
Chairman Nadler. Who seeks recognition?
Mr. Reschenthaler. Me, Mr. Chairman.
Chairman Nadler. For what purpose does the gentleman seek
recognition?
Mr. Reschenthaler. Mr. Chairman, I have a motion pursuant
to Rule 11, specifically 2(k)(6), I move to subpoena the
individual commonly referred to as the whistleblower. I ask to
do this in executive session----
Chairman Nadler. The gentleman has stated his motion. Do I
hear a motion to table?
Ms. Lofgren. I move to table the motion.
Chairman Nadler. The motion is tabled.
All in favor say aye.
Opposed no.
The motion to table----
Mr. Reschenthaler. Mr. Chairman, roll call vote.
Chairman Nadler [continuing]. Is approved. The roll call is
requested.
The clerk will call the roll.
Ms. Strasser. Mr. Nadler?
Chairman Nadler. Aye.
Ms. Strasser. Mr. Nadler votes aye.
Ms. Lofgren?
Ms. Lofgren. Aye.
Ms. Strasser. Ms. Lofgren votes aye.
Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
Ms. Strasser. Ms. Jackson Lee votes aye.
Mr. Cohen?
Mr. Cohen. Aye.
Ms. Strasser. Mr. Cohen votes aye.
Mr. Johnson of Georgia?
Mr. Johnson of Georgia. Aye.
Ms. Strasser. Mr. Johnson of Georgia votes aye.
Mr. Deutch?
Mr. Deutch. Aye.
Ms. Strasser. Mr. Deutch votes aye.
Ms. Bass?
Ms. Bass. Aye.
Ms. Strasser. Ms. Bass votes aye.
Mr. Richmond?
Mr. Richmond. Aye.
Ms. Strasser. Mr. Richmond votes aye.
Mr. Jeffries?
Mr. Jeffries. Aye.
Ms. Strasser. Mr. Jeffries votes aye.
Mr. Cicilline?
Mr. Cicilline. Aye.
Ms. Strasser. Mr. Cicilline votes aye.
Mr. Swalwell?
Mr. Swalwell. Aye.
Ms. Strasser. Mr. Swalwell votes aye.
Mr. Lieu?
Mr. Lieu. Aye.
Ms. Strasser. Mr. Lieu votes aye.
Mr. Raskin?
Mr. Raskin. Aye.
Ms. Strasser. Mr. Raskin votes aye.
Ms. Jayapal?
Ms. Jayapal. Aye.
Ms. Strasser. Ms. Jayapal votes aye.
Mrs. Demings?
Mrs. Demings. Aye.
Ms. Strasser. Mrs. Demings votes aye.
Mr. Correa?
Mr. Correa. Aye.
Ms. Strasser. Mr. Correa votes aye.
Ms. Scanlon?
Ms. Scanlon. Aye.
Ms. Strasser. Ms. Scanlon votes aye.
Ms. Garcia?
Ms. Garcia. Aye.
Ms. Strasser. Ms. Garcia votes aye.
Mr. Neguse?
Mr. Neguse. Aye.
Ms. Strasser. Mr. Neguse votes aye.
Mrs. McBath?
Mrs. McBath. Aye.
Ms. Strasser. Mrs. McBath votes aye.
Mr. Stanton?
Mr. Stanton. Aye.
Ms. Strasser. Mr. Stanton votes aye.
Ms. Dean?
Ms. Dean. Aye.
Ms. Strasser. Ms. Dean votes aye.
Ms. Mucarsel-Powell?
Ms. Mucarsel-Powell. Aye.
Ms. Strasser. Ms. Mucarsel-Powell votes aye.
Ms. Escobar?
Ms. Escobar. Aye.
Ms. Strasser. Ms. Escobar votes aye.
Mr. Collins?
[No response.]
Ms. Strasser. Mr. Sensenbrenner?
[No response.]
Ms. Strasser. Mr. Chabot?
Mr. Chabot. No.
Ms. Strasser. Mr. Chabot votes no.
Mr. Gohmert?
Mr. Gohmert. No.
Ms. Strasser. Mr. Gohmert votes no.
Mr. Jordan?
Mr. Jordan. No.
Ms. Strasser. Mr. Jordan votes no.
Mr. Buck?
Mr. Buck. No.
Ms. Strasser. Mr. Buck votes no.
Mr. Ratcliffe?
Mr. Ratcliffe. No.
Ms. Strasser. Mr. Ratcliffe votes no.
Mrs. Roby?
Mrs. Roby. No.
Ms. Strasser. Mrs. Roby votes no.
Mr. Gaetz?
Mr. Gaetz. No.
Ms. Strasser. Mr. Gaetz votes no.
Mr. Johnson of Louisiana?
Mr. Johnson of Louisiana. No.
Ms. Strasser. Mr. Johnson of Louisiana votes no.
Mr. Biggs?
Mr. Biggs. No.
Ms. Strasser. Mr. Biggs votes no.
Mr. McClintock?
Mr. McClintock. No.
Ms. Strasser. Mr. McClintock votes no.
Mrs. Lesko?
Mrs. Lesko. No.
Ms. Strasser. Mrs. Lesko votes no.
Mr. Reschenthaler?
Mr. Reschenthaler. No.
Ms. Strasser. Mr. Reschenthaler votes no.
Mr. Cline?
Mr. Cline. No.
Ms. Strasser. Mr. Cline votes no.
Mr. Armstrong?
Mr. Armstrong. No.
Ms. Strasser. Mr. Armstrong votes no.
Mr. Steube?
Mr. Steube. No.
Ms. Strasser. Mr. Steube votes no.
Chairman Nadler. Has everyone voted who wishes to vote?
Mr. Collins. Mr. Chairman, how am I recorded?
Ms. Strasser. Mr. Collins, you are not recorded.
Mr. Collins. No.
Ms. Strasser. Mr. Collins votes no.
Chairman Nadler. Is there anyone else who wishes to vote?
Mr. Sensenbrenner. Mr. Chairman, how am I recorded?
Ms. Strasser. Mr. Sensenbrenner, you are not recorded.
Mr. Sensenbrenner. No.
Ms. Strasser. Mr. Sensenbrenner votes no.
Chairman Nadler. Anyone else?
The clerk will report.
Ms. Strasser. Mr. Chairman, there are 24 ayes and 17 noes.
Chairman Nadler. The motion to table is adopted.
We will now proceed to the first round of questions.
Pursuant to House Resolution 660 and its accompanying
Judiciary Committee procedures, there will be 45 minutes of
questions conducted by the chairman or majority counsel
followed by 45 minutes for the ranking member or minority
counsel. Only the chair and ranking member and their respective
counsels may question witnesses during this period.
Following that, unless I specify additional equal time for
extended questioning, we will proceed under the 5-minute rule,
and every member will have the chance to ask questions.
I now recognize myself for the first round of questions.
Professors, thank you for being here today. The committee
has been charged with the grave responsibility of considering
whether to recommend articles of impeachment against the
President. I speak for my colleagues when I say that we do not
take this lightly and we are committed to ensuring that today's
hearing, as well as the larger responsibility before us, are
grounded in the Constitution.
The Intelligence Committee's report concluded that the
President pressured a foreign leader to interfere in our
elections by initiating and announcing investigations into
President Trump's political adversaries. He then sought to
prevent Congress from investigating his conduct by ordering his
administration and everyone in it to defy House subpoenas.
Professor Karlan, as you said, the right to vote is the
most precious legal right we have in this country. Does the
President's conduct endanger that right?
Ms. Karlan. Yes, Mr. Chairman, it does.
Chairman Nadler. Thank you. And how does it do so?
Ms. Karlan. The way that it does it is exactly what
President Washington warned about, by inviting a foreign
government to influence our elections. It takes the right away
from the American people and it turns that into a right that
foreign governments decide to interfere for their own benefit.
Foreign governments don't interfere in our elections to benefit
us; they intervene to benefit themselves.
Chairman Nadler. Thank you.
Professor Gerhardt, you have written extensively about our
system of checks and balances. What happens to that system when
a President undertakes a blockade of Congress' impeachment
inquiry when he orders all witnesses not to testify, and what
is our recourse?
Mr. Gerhardt. When a President does that separation of
powers means nothing. The subpoenas that have been issued, of
course, are lawful orders. In our law schools we would teach
our students, this is an easy, straightforward situation. You
comply with the law. Lawyers all the time have to comply with
subpoenas.
But in this situation the full-scale obstruction, full-
scale obstruction of those subpoenas, I think, torpedoes
separation of powers, and therefore your only recourse is to,
in a sense, protect your institutional prerogatives, and that
would include impeachment.
Chairman Nadler. And the same is true of defying
congressional subpoenas on a wholesale basis with respect to
oversight not just through impeachment?
Mr. Gerhardt. Absolutely, yes, sir.
Chairman Nadler. Thank you.
Professor Feldman, as I understand it, the Framers intended
impeachment to be used infrequently, not as punishment, but to
save our democracy from threats so significant that we cannot
wait for the next election. In your testimony you suggest that
we face that kind of threat. Can you explain why you think
impeachment is the appropriate recourse here, why we cannot
wait for the next election?
Those are two questions if you want them to be.
Mr. Feldman. 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.
On the facts that we have before the House right now, the
President solicited assistance from a foreign government in
order to assist his own reelection; that is, he used the power
of his office that no one else could possibly have used in
order to gain personal advantage for himself distorting the
election, and that's precisely what the Framers anticipated.
Chairman Nadler. Thank you very much.
I now yield the remainder of my time to Mr. Eisen for
counsel questions.
Mr. Eisen.
Mr. Eisen. Professors, good morning. Thank you for being
here. I want to ask you some questions about the following high
crimes and misdemeanors that were mentioned in the opening
statements: Abuse of power and bribery, obstruction of
Congress, and obstruction of justice.
Professor Feldman, what is abuse of power?
Mr. Feldman. Abuse of power is when the President uses his
office, takes an action that is part of the presidency, not to
serve the public interest but to serve his private benefit.
And, in particular, it's an abuse of power if he does it to
facilitate his reelection or to gain an advantage that is not
available to anyone who is not the President.
Mr. Eisen. Sir, why is that impeachable conduct?
Mr. Feldman. If the President uses his office for personal
gain, the only recourse available under the Constitution is for
him to be impeached because the President cannot be, as a
practical matter, charged criminally while he is in office
because the Department of Justice works for the President. So
the only mechanism available for a President who tries to
distort the electoral process for personal gain is to impeach
him. That is why we have impeachment.
Mr. Eisen. Professor Karlan, do scholars of impeachment
generally agree that abuse of power is an impeachable offense?
Ms. Karlan. Yes, they do.
Mr. Eisen. Professor Gerhardt, do you agree that abuse of
power is impeachable?
Mr. Gerhardt. Yes, sir.
Mr. Eisen. I'd like to focus the panel on the evidence they
considered and the findings in the Intelligence Committee
report that the President solicited the interference of a
foreign government, Ukraine, in the 2020 U.S. presidential
election.
Professor Feldman, did President Trump commit the
impeachable high crime and misdemeanor of abuse of power based
on that evidence and those findings?
Mr. Feldman. Based on that evidence and those findings, the
President did commit an impeachable abuse of office.
Mr. Eisen. Professor Karlan, same question.
Ms. Karlan. Same answer.
Mr. Eisen. And, Professor Gerhardt, did President Trump
commit the impeachable high crime and misdemeanor of abuse of
power?
Mr. Gerhardt. We three are unanimous, yes.
Mr. Eisen. Professor Feldman, I'd like to quickly look at
the evidence in the report. On July 25th, President Trump told
the President of Ukraine, and I quote, ``I would like you to do
us a favor though,'' and he asked about looking into the
Bidens. Was the memorandum of that call relevant to your
opinion that the President committed abuse of power?
Mr. Feldman. The memorandum of that call between the two
Presidents is absolutely crucial to the determination--to my
determination that the President abused his office.
Mr. Eisen. And did you consider the findings of fact that
the Intelligence Committee made, including that--and again I
quote--the President withheld official acts of value to Ukraine
and conditioned their fulfilment on actions by Ukraine that
would benefit his personal political interests?
Mr. Feldman. Yes. In making the determination that the
President committed an impeachable offense, I relied on the
evidence that was before the House and the testimony. And then
when this report was issued, I continued to rely on that.
Mr. Eisen. Sir, did you review the following testimony from
our Ambassador to Ukraine, Ambassador William Tayleur?
[Video played.]
Mr. Feldman. Yes, that evidence underscored the way that
the President's actions undercut national security.
Mr. Eisen. Professor Feldman, will you please explain why
you concluded that the President committed the high crime of
abuse of power and why it matters?
Mr. Feldman. The abuse of power occurs when the President
uses his office for personal advantage or gain. That matters
fundamentally to the American people, because if we cannot
impeach a President who abuses his office for personal
advantage, we no longer live in a democracy; we live in a
monarchy or we live under a dictatorship. That's why the
Framers created the possibility of impeachment.
Mr. Eisen. Now, Professor Karlan, this high crime and
misdemeanor of abuse of power, was it some kind of loose or
undefined concept to the founders of our country and the
Framers of our Constitution?
Ms. Karlan. No, I don't think it was an--it was a loose
concept at all. It had a long lineage in the common law in
England of parliamentary impeachments of lower-level officers.
Obviously they had not talked about impeaching, as you've heard
earlier, the king or the like.
Mr. Eisen. And can you share a little bit about that
lineage, please?
Ms. Karlan. Yes. So the--you know, the parliament in
England impeached officers of the crown when those people
abused their power, and if I could give you one example that
might be a little helpful here.
Right after the restoration of the kingship in England,
there was an impeachment. And, you know, when they impeach
somebody, they had to say what were they impeaching him for. So
sometimes it would be, we're impeaching him for treason or the
like, and sometimes they would use the phrase ``high crime or
misdemeanor.''
And there was an impeachment of Viscount Mordaunt, which is
a great name to have, but Viscount Mordaunt, and he was
impeached because he was the sheriff of Windsor. And as the
parliamentary election was coming up, he arrested William
Tayleur. And I just want to read to you from the article of
impeachment in front of the House of Commons because it's so
telling.
Here's what article I of the impeachment said. It said,
understanding that one William Tayleur did intend to stand for
the election of one of the burgesses of the Borough of Windsor
to serve in this present parliament--in other words, he was
running as a member of parliament, this is what Viscount
Mordaunt did--to disparage and prevent the free election of the
said William Tayleur and strike a terror into those of the said
borough which should give their voices for him and deprive them
of the freedom of their voices at the election, Viscount
Mordaunt did command and cause the said William Tayleur to be
forcibly, illegally, and arbitrarily seized upon by soldiers,
and then he detained him. In other words, he went after a
political opponent, and that was a high crime or misdemeanor to
use your office to go after a political opponent.
Mr. Eisen. Now, Professor Gerhardt, does a high crime and
misdemeanor require an actual statutory crime?
Mr. Gerhardt. 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.
Mr. Eisen. And, Professor Turley, you recently wrote in the
Wall Street Journal, and I quote, ``There is much that is
worthy of investigation in the Ukraine scandal, and it is true
that impeachment doesn't require a crime.''
Mr. Turley. That's true, but I also added an important
caveat. First of all----
Mr. Eisen. Sir, it was a yes or a no question. Did you
write in the Wall Street Journal, ``There is much that is
worthy of investigation in the Ukraine scandal, and it is true
that impeachment does not require a crime''?
Is that an accurate quote, sir?
Mr. Turley. That's--you read it well.
Mr. Eisen. So, Professors Feldman, Karlan, and Gerhardt,
you have identified that on the evidence here there is an
impeachable act, a high crime and misdemeanor of abuse of
power, correct?
Mr. Gerhardt. Correct.
Ms. Karlan. Yes.
Mr. Feldman. Yes.
Mr. Eisen. And, Professor Feldman, what does the
Constitution say is the responsibility of the House of
Representatives in dealing with presidential high crimes and
misdemeanors like abuse of power?
Mr. Feldman. The Constitution gives the House of
Representatives the sole power of impeachment. That means the
House has the right and the responsibility to investigate
presidential misconduct and, where appropriate, to create and
pass articles of impeachment.
Mr. Eisen. And, Professor Karlan, what does that
responsibility mean for this committee with respect to
President Trump's abuse of power?
Ms. Karlan. Well, 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,
or at least you don't investigate and then impeach if you
conclude that the House Select Committee on Intelligence
findings are correct, then what you're saying is it's fine to
go ahead and do this again.
And I think that as the--you know, in the report that came
out last night, the report talks about the clear and present
danger to the elections system. And it's your responsibility to
make sure that all Americans get to vote in a free and fair
election next November.
Mr. Eisen. Professor Karlan, I'd like to direct you to the
words in the Constitution, other high crimes and misdemeanors.
And we're still going to talk about abuse of power. Can I ask,
did the Constitution spell out every other high crime and
misdemeanor?
Ms. Karlan. No, it did not. It----
Mr. Eisen. Why--please. Please answer.
Ms. Karlan. Well, in part because they recognize that the
inventiveness of man and the likelihood that this Constitution
would endure for generations meant they couldn't list all of
the crimes that might be committed. They couldn't imagine an
abuse of power, for example, that involved burglarizing and
stealing computer files from an adversary because they couldn't
have imagined computers. They couldn't necessarily have
imagined wiretapping because we had no wires in 1789.
So what they did is they put in a phrase that the English
had used and had adapted over a period of centuries to take
into account that the idea of high crimes and misdemeanors is
to get at things that people in office use to strike at the
very heart of our democracy.
Mr. Eisen. And, Professor, in your written testimony you
mention two additional aspects of high crimes and misdemeanors
besides abuse of power. You talked about betrayal of the
national interest and corruption of the electoral process.
And can you say a little bit more about what the Framers'
concerns were about corruption of elections and betrayal of the
national interest involving foreign powers and how they come
into play here.
Ms. Karlan. Sure. So let me start with the Framers and what
they were concerned with and then bring it up to date, because
I think there's some modern stuff as well that's important. So
the Framers were very worried that elections could be
corrupted, they could be corrupted in a variety of different
ways, and they spent a lot of time trying to design an election
system that wouldn't be subject to that kind of corruption.
And there are a number of different provisions in the
Constitution that deal with the kinds of corruption they were
worried about, two that I'd just like to highlight here because
I think they go to this idea about the national interest and
foreign governments, are one that seems today I think to most
of us to be really a kind of remnant of a past time, which is
if you become an American citizen, almost everything in this
country is open to you.
You can become Chief Justice of the United States. You can
become Secretary of State. But the one office that's not open
to you, even though you're a citizen just like all of the rest
of us, is the presidency because of the natural-born citizen
clause of the Constitution. And the reason they put that in is
they were so worried about foreign influence over a President.
The other clause, which, you know, probably no one had
heard of, you know, 5 years ago but now everybody talks about
is the Emoluments Clause. They were really worried that the
President, because he was only going to be in office for a
little while, would use it to get everything he could and he
would take gifts from foreign countries, not even necessarily
bribes but just gifts, and they were worried about that as
well.
So they were very concerned about those elections. But it's
not just them. And I want to say something about what our
national interest is today, because our national interest today
is different in some important ways than it was in 1789. What
the Framers were worried about was that we would be a weak
country and we could be exploited by foreign countries.
Now, we're a strong power now, the strongest power in the
world. We can still be exploited by foreign countries. But the
other thing that we've done--and this is one of the things that
I think we as Americans should be proudest of--is we have
become what John Winthrop said in his sermon in 1640 and what
Ronald Reagan said in his final address to the country as he
left office, we have become the shining city on a hill. We have
become the Nation that leads the world in understanding what
democracy is.
And one of the things we understand most profoundly is,
it's not a real democracy, it's not a mature democracy if the
party in power uses the criminal process to go after its
enemies.
And I think you heard testimony that--the Intelligence
Committee heard testimony about how it isn't just our national
interest in protecting our own elections, it's not just our
national interest in making sure that the Ukraine remains
strong and on the front lines so they fight the Russians there
and we don't have to fight them here, but it's also our
national interest in promoting democracy worldwide.
And if we look hypocritical about this, if we look like
we're asking other countries to interfere in our election, if
we look like we're asking other countries to engage in criminal
investigations of our President's political opponents, then we
are not doing our job of promoting our national interest in
being that shining city on a hill.
Mr. Eisen. Professor Feldman, anything to add?
Mr. Feldman. Ultimately, the reason that the Constitution
provided for impeachment was to anticipate a situation like the
one that is before you today. The Framers were not prophets,
but they were very smart people with a very sophisticated
understanding of human incentives.
And they understood that a President would be motivated
naturally to try to use the tremendous power of office to gain
personal advantage to keep himself in office, to corrupt the
electoral process, and potentially to subvert the national
interest.
The facts strongly suggest that this is what President
Trump has done, and under those circumstances, the Framers
would expect the House of Representatives to take action in the
form of impeachment.
Mr. Eisen. And, Professor Feldman, did you review the
Intelligence Committee report finding that President Trump
compromised national security to advance his personal political
interests?
Mr. Feldman. I did.
Mr. Eisen. And will you explain, in your view, how that
happened?
Mr. Feldman. The President sought personal gain and
advantage by soliciting the announcement of investigations, and
presumably investigations, from Ukraine, and to do so he
withheld critical assistance that the Government of Ukraine
needed, and by doing so, he undermined the national security
interest of the United States in helping Ukraine, our ally, in
a war that it is fighting against Russia.
So in the simplest possible terms, the President put his
personal gain ahead of the national security interest as
expressed, according to the evidence before you, by the
entirety of a unanimous national security community.
Mr. Eisen. Sir, is it your view that the Framers would
conclude that there was a betrayal of the national interest or
national security by President Trump on these facts?
Mr. Feldman. In my view, if the Framers were aware that a
President of the United States had put his personal gain and
interest ahead of the national security of the United States by
conditioning aid to a crucial ally that's in the midst of a war
on investigations aimed at his own personal gain, they would
certainly conclude that that was an abuse of the office of the
presidency, and they would conclude that that conduct was
impeachable under the Constitution.
Mr. Eisen. Professor Gerhardt, what are your thoughts on
the abuse of power, betrayal of national security or national
interest, and the corruption of elections, sir?
Mr. Gerhardt. Well, I have a lot of thoughts. One of them
is that what we haven't mentioned yet and brought into this
conversation is the fact that the impeachment power requires
this committee, this House to be able to investigate
presidential misconduct.
And if a President can block an investigation, undermine
it, stop it, then the impeachment power itself as a check
against misconduct is undermined completely.
Mr. Eisen. And, Professor Karlan, can you have an
impeachable offense of abuse of power that is supported by
considerations of a President's betrayal of the national
interest or national security and by corruption of elections?
Ms. Karlan. Yes, you can.
Mr. Eisen. And do we have that here, ma'am?
Ms. Karlan. Based on the evidence that I've seen, which is
reviewing the twelve--the transcripts of the twelve witnesses
who testified, looking at the call readout, looking at some of
the President's other statements, looking at the statement by
Mr. Mulvaney and the like, yes, we do.
Mr. Eisen. And, Professor Feldman, do you agree?
Mr. Feldman. Yes.
Mr. Eisen. Professor Gerhardt?
Mr. Gerhardt. Yes, I do.
Mr. Eisen. Professor Karlan, we've been talking about the
category of other high crimes and misdemeanors, like abuse of
power. But there are some additional high crimes and
misdemeanors that are specifically identified in the text of
the Constitution, correct?
Ms. Karlan. Yes, that's true.
Mr. Eisen. What are they?
Ms. Karlan. Treason and bribery.
Mr. Eisen. Do President Trump's demands on Ukraine also
establish the high crime of bribery?
Ms. Karlan. Yes, they do.
Mr. Eisen. Can you explain why, please?
Ms. Karlan. Sure. So the high crime or misdemeanor of
bribery, I think it's important to distinguish that from
whatever the U.S. Code calls bribery today. And the reason for
this in part is because in 1789 when the Framers were writing
the Constitution, there was no Federal Criminal Code.
The first bribery statutes that the United States Congress
passed would not have reached a President at all because the
first one was just about customs officials, and the second one
was only about judges.
So it wasn't until, I don't know, 60 years or so after the
Constitution was ratified that we had any general Federal crime
of bribery at all. So when they say explicitly in the
Constitution that the President can be impeached and removed
from office for bribery, they weren't referring to a statute.
And I will say, I'm not an expert on Federal--substantive
Federal criminal law. All I will say here is, the bribery
statute is a very complicated statute.
So what they were thinking about was bribery as it was
understood in the 18th century based on the common law up until
that point. And that understanding was an understanding that
someone--and generally even then it was mostly talking about a
judge, it wasn't talking about a President because there was no
President before then.
And it wasn't talking about the king because the king could
do no wrong. But what they were understanding then was the idea
that when you took private benefits or when you asked for
private benefits in return for an official act, or somebody
gave them to you to influence an official act, that was
bribery.
Mr. Eisen. And so we have constitutional bribery here, the
high crime and misdemeanor of constitutional bribery against
President Trump?
Ms. Karlan. If you conclude that he asked for the
investigation of Vice President Biden and his son for political
reasons, that is to aid his reelection, then, yes, you have
bribery here.
Mr. Eisen. And in forming that opinion, did you review the
memorandum of the President's telephone call with the Ukrainian
President, the one where President Trump asked, ``I would like
you to do us a favor though,'' and also asked about looking
into his U.S. political opponents?
Ms. Karlan. Yes, I did rely on that.
Mr. Eisen. And did you consider the following testimony
from our Ambassador to the European Union, Ambassador Sondland?
[Video played.]
Mr. Eisen. Did you consider that, Professor?
Ms. Karlan. I did consider that, yes.
Mr. Eisen. And did you also consider the findings of fact
that the Intelligence Committee made including that, and I
quote from finding of fact number five, ``The President
withheld official acts of value to Ukraine and conditioned
their fulfillment on actions by Ukraine that would benefit his
personal political interests?
Ms. Karlan. I did rely on that, in addition, because as
I've already testified, I read the witnesses--the transcripts
of all of the witnesses and the like, I relied on testimony
from Ambassador Sondland and testimony from Mr. Morrison,
testimony from Lieutenant Colonel Vindman, testimony for
Ambassador Taylor.
I relied on the fact that when--I think it was Ambassador
Taylor, but I may be getting which one of these people wrong,
sent the cable that said, you know, it's crazy to hold this up
based on domestic political concern. No one wrote back and
said, that's not why we're doing it. I relied on what Mr.
Mulvaney said in his press conference. So there was--you know,
there's a lot to suggest here that this is about political
benefit. And I don't know if I can talk about another piece of
Ambassador Sondland's testimony now or I should wait. Tell me.
Mr. Eisen. Please, talk about it.
Ms. Karlan. So I want to just point to what I consider to
be the most striking example of this and the most--you know, I
spent all of Thanksgiving vacation sitting there reading these
transcripts. I didn't, you know--I ate like a turkey that came
to us in the mail that was already cooked because I was
spending my time doing this.
And the most chilling line for me of the entire process was
the following: Ambassador Sondland said, he had to announce the
investigations. He's talking about President Zelensky. ``He had
to announce the investigations. He didn't actually have to do
them, as I understood it.'' And then he said, ``I never heard,
Mr. Goldman, anyone say that the investigations had to start or
had to be completed. The only thing I heard from Mr. Giuliani
or otherwise was they had to be announced in some form.''
And what I took that to mean was this was not about whether
Vice President Biden actually committed corruption or not; this
was about injuring somebody who the President thinks of as a
particularly hard opponent. And that's for his private beliefs.
Because if I can say one last thing about the interests of
the United States: the Constitution of the United States does
not care whether the next President of the United States is
Donald J. Trump or any one of the Democrats or anybody running
on a third party.
The Constitution is indifferent to that. What the
Constitution cares about is that we have free elections. And so
it is only in the President's interest--It is not the national
interest that a particular President be elected or be defeated
at the next election. The Constitution is indifferent to that.
Mr. Eisen. Professor Feldman, any thoughts on the subject
of the high crime and misdemeanor of bribery and the evidence
that Professor Karlan laid out?
Mr. Feldman. The clear sense of bribery at the time when
the Framers adopted this language in the Constitution was that
bribery existed under the Constitution when the President
corruptly asked for or received something of value to him from
someone who could be affected by his official office.
So if the House of Representatives and the members of this
committee were to determine that getting the investigations
either announced or undertaken was a thing of value to
President Trump and that that was what he sought, then this
committee and this House could safely conclude that the
President had committed bribery under the Constitution.
Mr. Eisen. Professor Gerhardt, what is your view?
Mr. Gerhardt. I, of course, agree with Professor Karlan and
Professor Feldman. And I just want to stress that if this--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.
And if there's no action, if Congress concludes they're
going to give a pass to the President here, as Professor Karlan
suggested earlier, every other President will say, okay, then I
can do the same thing and the boundaries will just evaporate,
and those boundaries are set up by the Constitution. And we may
be witnessing, unfortunately, their erosion, and that is a
danger to all of us.
Mr. Eisen. And what can this committee and the House of
Representatives do, sir, to defend those boundaries and to
protect against that erosion?
Mr. Gerhardt. Precisely what you're doing.
Mr. Eisen. And does it matter--I'll ask all the panelists--
does it matter to impeachment that the $391 million, U.S.
taxpayer dollars in military assistance that the President
withheld was ultimately delivered? Professor Feldman, does that
matter to the question of impeachment?
Mr. Feldman. No, it does not. If the President of the
United States attempts to abuse his office, that is a complete
impeachable offense. The possibility that the President might
get caught in the process of attempting to abuse his office and
then not be able to pull it off does not undercut in any way
the impeachability of the act.
If you'll pardon a comparison, President Nixon was subject
to articles of impeachment preferred by this committee for
attempting to cover up the Watergate break-in. The fact that
President Nixon was not ultimately successful in covering up
the break-in was not grounds for not impeaching him. The
attempt itself is the impeachable act.
Mr. Eisen. Professor Karlan, does it matter to impeachment
that the unfounded investigations the President sought were
ultimately never announced?
Ms. Karlan. No, it doesn't. And if I could give an example
that I think shows why soliciting is enough, imagine that you
were pulled over for speeding by a police officer and the
officer comes up to the window and says, you were speeding but,
you know, if you give me 20 bucks I'll drop the ticket. And you
look in your wallet and you say to the officer, I don't have
the $20. And the officer says, okay, well, just go ahead. Have
a nice day.
The officer would still be guilty of soliciting a bribe
there even though he ultimately let you off without your
paying. Soliciting itself is the impeachable offense regardless
whether the other person comes up with this.
So imagine that the President had said, will you do us a
favor, will you investigate Joe Biden, and the President of
Ukraine said, you know what, no, I won't, because we've already
looked into this and it's totally baseless. The President would
still have committed an impeachable act even if he had been
refused right there on the phone. So I don't see why the
ultimate decision has anything to do with the President's
impeachable conduct.
Mr. Eisen. What's the danger if Congress does not respond
to that attempt?
Ms. Karlan. Well, we've already seen a little bit of it,
which is he gets out on the White House lawn and says, ``China,
I think you should investigate Joe Biden.''
Mr. Eisen. And, Professor Gerhardt, your view?
Mr. Gerhardt. I certainly would agree with what has been
said. One of the things to understand from the history of
impeachment is everybody who's impeached has failed. They
failed to get what they wanted, and what they wanted was not
just to do what they did but to get away with it.
And the point of impeachment is, and it's made possible
through investigation, is to catch that person, charge that
person, and ultimately remove that person from office. But
impeachments are always focusing on somebody who didn't quite
get as far as they wanted to.
You know, nobody is better than Professor Karlan at
hypotheticals, but I'll dare to raise yet another one. Imagine
a bank robbery and the police come and the person is in the
middle of a bank robbery and the person then drops the money
and says, I'm going to leave without the money. Everybody
understands that's bur--that's rob--I mean that's burglary.
I'll get it right, yeah. And in this situation, we've got
somebody really caught in the middle of it, and that doesn't
excuse the person from the consequences.
Mr. Eisen. Professors, we've talked about abuse of power
and bribery. When we started we said we would also discuss
obstruction of Congress. So I'd like to ask you some questions
about obstruction of Congress.
Professor Gerhardt, in your view, is there enough evidence
here to charge President Trump with the high crime and
misdemeanor of obstruction of Congress?
Mr. Gerhardt. I think there's more than enough. As I
mentioned in my statement, just to really underscore this, the
third article of impeachment approved by the House Judiciary
Committee against President Nixon charged him with misconduct
because he had failed to comply with four legislative
subpoenas.
Here it is far more than four that this President has
failed to comply with, and he's ordered the executive branch as
well not to cooperate with Congress. Those, together with a lot
of other evidence, suggests obstruction of Congress.
Mr. Eisen. Professor Karlan, do you agree?
Ms. Karlan. I'm a scholar of the law of democracy, so as a
citizen, I agree with what Professor Gerhardt said. As an
expert, my limitation is that I'm a scholar of the law of
democracy. I'm not a scholar of obstruction of justice or
obstruction of Congress.
Mr. Eisen. We will accept your opinion as a citizen.
Professor Feldman.
Mr. Feldman. The obstruction of Congress is a problem
because it undermines the basic principle of the Constitution.
If you're going to have three branches of government, each of
the branches has to be able to do its job. The job of the House
is to investigate impeachment and to impeach.
A President who says, as this President did say, I will not
cooperate in any way, shape, or form with your process, robs a
coordinate branch of government, he robs the House of
Representatives of its basic constitutional power of
impeachment.
When you add to that the fact that the same President says,
my Department of Justice cannot charge me with a crime, the
President puts himself above the law when he says he will not
cooperate in an impeachment inquiry. I don't think it's
possible to emphasize this strongly enough. A President who
will not cooperate in an impeachment inquiry is putting himself
above the law.
Now, putting yourself above the law as President is the
core of an impeachable offense because if the President could
not be impeached for that, he would, in fact, not be
responsible to anybody.
Mr. Eisen. And, sir, in forming your opinion, did you
review these statements from President Trump?
[Video played.]
Mr. Feldman. I did, and as someone who cares about the
Constitution, the second of those in particular struck a kind
of horror in me.
Mr. Eisen. And, Professor Gerhardt, in forming your opinion
that President Trump has committed the impeachable offense of
obstruction of Congress, did you consider the Intelligence
Committee report and its findings, including finding 9, that
President Trump ordered and implemented a campaign to conceal
his conduct from the public and to frustrate and obstruct the
House of Representatives' impeachment inquiry?
Mr. Gerhardt. I read that report last night after I had
submitted my statement, but I watched and read all the other
transcripts that were available. The report that was issued
reinforces everything else that came before it, so, yes.
Mr. Eisen. So we've talked first about abuse of power and
bribery and then about obstruction of Congress. Professor
Gerhardt, I'd like to now ask you some questions about a third
impeachable offense and that is obstruction of justice. Sir,
have you formed an opinion as to whether President Trump
committed the impeachable offense of obstruction of justice?
Mr. Gerhardt. Yes, I have.
Mr. Eisen. And what is your opinion, sir?
Mr. Gerhardt. Well, based on--so I've come here, like every
other witness, assuming the facts that have been put together
in official reports. The Mueller report cites a number of facts
that indicate the President of the United States obstructed
justice. And that's an impeachable offense.
Mr. Eisen. And in your testimony, sir, you pointed out that
the Mueller report found at least five instances of the
President's obstruction of the Justice Department's criminal
investigation into Russian interference in the 2016 election,
correct?
Mr. Gerhardt. Yes, sir.
Mr. Eisen. And the first of those instances, was the
President's ordering his then-White House counsel, Don McGahn,
to fire the special counsel rather to have the special counsel
fired in order to thwart the investigation of the President,
correct?
Mr. Gerhardt. That is correct.
Mr. Eisen. And the second was the President ordering Mr.
McGahn to create a false written record denying that the
President had ordered him to have Mr. Mueller removed?
Mr. Gerhardt. That's correct.
Mr. Eisen. And you also point to the meeting of the
President with his former campaign manager, Corey Lewandowski,
in order to get him to take steps to have the investigation
curtailed, right?
Mr. Gerhardt. Yes, sir, I did.
Mr. Eisen. And you also point to pardoned angling and
witness tampering as to Paul Manafort and Michael Cohen, former
campaign official, former personal lawyer of the President?
Mr. Gerhardt. Both individually and collectively, these are
evidence of obstruction of justice.
Mr. Eisen. How serious is that evidence of obstruction of
justice, sir?
Mr. Gerhardt. It is quite serious, and that's not all of
it, of course. And we know, as you've mentioned before and
others have mentioned, obstruction of justice has been
recognized as an impeachable offense both against President
Clinton and President Nixon. This evidence that has been put
forward by Mr. Mueller that's in the public record is very
strong evidence of obstruction of justice.
Mr. Eisen. Professor Karlan, when you look at the
Department of Justice Russia investigation and how the
President responded to that, and when you look at Congress'
Ukraine investigation and how the President responded to that,
do you see a pattern?
Ms. Karlan. Yes, I see a pattern in which the President's
views about the propriety of foreign governments intervening in
our election process are the antithesis of what our Framers
were committed to. Our Framers were committed to the idea that
we as Americans, we as Americans decide our elections, we don't
want foreign interference in those elections. And the reason we
don't want foreign interference in those elections is because
we're a self-determining democracy.
And if I could just read one quotation to you that I think
is helpful in understanding this, it's somebody who's pointing
to what he calls a straightforward principle. ``It is
fundamental to the definition of our national political
community that foreign citizens do not have a constitutional
right to participate in and thus may be excluded from
activities of democratic self-government.''
And the person who wrote those words is now-Justice Brett
Kavanaugh in upholding the constitutionality of a Federal
statute that denies foreign citizens the right to participate
in our elections by spending money on electioneering or by
giving money to PACs. They have long been forbidden to give
contributions to candidates, and the reason for that is because
that denies us our right to self-government.
And then-Judge, now-Justice Brett Kavanaugh, was so correct
in seeing this that the Supreme Court, which as you know, has
taken campaign finance case after campaign finance case to talk
about the First Amendment, summarily affirmed here, that is,
they didn't even need to hear argument to know that it's
constitutional to keep foreigners out of our election process.
Mr. Eisen. Professor Feldman, you were somewhat of an
impeachment skeptic at the time of the release of the Mueller
report. Were you not?
Mr. Feldman. I was.
Mr. Eisen. What's changed for you, sir?
Mr. Feldman. What changed for me was the revelation of the
July 25th call, and then the evidence that emerged subsequently
of the President of the United States in a format where he was
heard by others and now known to a whole public, openly abused
his office by seeking a personal advantage in order to get
himself reelected, and act against the national security of the
United States.
And that is precisely the situation that the Framers
anticipated. It's very unusual for the Framers' predictions to
come true that precisely, and when they do, we have to ask
ourselves. Some day we will no longer be alive, and we'll go
wherever it is we go, the good place or the other place, and
you know, we may meet there, Madison and Hamilton, and they
will ask us: When the President of the United States acted to
corrupt the structure of the Republic, what did you do? And our
answer to that question must be that we followed the guidance
of the Framers. And it must be that if the evidence supports
that conclusion, that the House of Representatives moves to
impeach him.
Mr. Eisen. Thank you.
I yield my time back to the chairman.
Chairman Nadler. And my time has expired. I yield back.
Before I recognize the Ranking Member for his round--first
round of questions, the committee will stand in a 10-minute
humanitarian recess.
I ask everyone in the room to please remain seated and
quiet while the witnesses exit the room. I also want to
announce to those in the audience, that you may not be
guaranteed your seat if you leave the hearing room at this
time.
Once the witnesses have left the hearing room--at this time
the committee will stand in a short recess.
[Recess.]
Chairman Nadler. The committee will come back to order
after the recess.
The chair now recognizes the Ranking Member for his first
round of questions. Pursuant to House Resolution 660, the
Ranking Member or his counsel have 45 minutes to question the
witnesses. Ranking member.
Mr. Collins. Thank you, Mr. Chairman. Before I begin on the
questioning, I do want to revisit a comment that was made
earlier by you, Mr. Chairman, it was our demand for a minority
hearing day, and you said that you would rule on it later. I
just wanted to remind you, the Rules of the House do not permit
a ruling on this, they do not permit a vote, and you cannot
shut it down.
And according to your own words, the minority is entitled
to a day of hearings, it is a right rarely exercised, but it
guards against the majority abusing its power to exclude
competing views. Call it the fair and balance rule.
It's not the chairman's right to determine whether we
deserve a hearing. It's not the chairman's right to decide
whether prior hearings were sufficient. It's not the chairman's
right to decide what we say or think is acceptable. It is
certainly not the chairman's right to violate the rules in
order to interfere with our right to conduct a hearing.
And I just commend Mr. Sensenbrenner for bringing that
forward, and look forward to that schedule--that you getting
that scheduled expeditiously.
Moving on, interesting part, now we hit Phase II. You've
had one side, and I have to say it was eloquently argued by not
only the counsel and by the witnesses involved, but there is
always a Phase II. A Phase II is what is problematic here.
Because as I said in my opening statement, this is one that
would be, and for many, one of the most disputed impeachments
on just the facts themselves.
What was interesting is we actually showed videos of
witnesses, in fact, one of them was an opening statement,
again, I believe, which, again, the closest thing to perfect
outside your resume this side of heaven is an opening statement
because it is unchallenged, and I agree with that. And it
should be.
And we have had great witnesses here to talk about this.
But we didn't talk about anything about Kurt Volker, who said
nothing about it. We said nothing about the aid being held up.
Morrison, who contradicted Vindman and others, we have not done
that. And I don't expect the majority to because that's not
what they're here for. They're not here to give exculpatory
evidence. Just like the Schiff reported gives nothing of
exculpatory evidence.
And also there's still evidence being withheld by Adam
Schiff that has not come to this committee, and we still have
not got any any of the underlying stuff that came the from that
investigation, according to House Rule--H 660, we believe we're
supposed to get.
One being the very important part is the Inspector
General--the IC Inspector General, his testimony is still being
held. And there is a, quote, secret on it, or they are holding
it in classification. The last time I checked, we have plenty
of places in this building and other buildings to handle
classified information if they still want to do that. But it is
being withheld from us, I have to believe now there is a reason
it's being withheld because undoubtedly there's a problem with
it, and we'll just have to see as that goes forward.
So anybody in the media, anybody watching today, the first,
you know, 45 minutes as we went through have painted a very
interesting picture. It's painted an interesting picture that
goes back many, many years. It paints an interesting picture of
picking and choosing which part of the last few weeks we want
to talk about, and that's fine, because we'll have the rest of
the day to go about this.
But, Professor Turley, you're now well-rested. And you got
one question you were asked a yes/no on and not given to
elaborate. But I want to start here. Let's just do this.
Elaborate, if you would, because you tried to on the question
that was asked to you, and then if there's anything else that
you've heard this morning that you would disagree with, or have
an answer to, I will go ahead and allow you some time to talk.
By the way, just for the information, Mr. Chairman, this is
the coldest hearing room in the world. And also for those of
you who are worried about I'm uncomfortable or upset, I'm happy
as a lark, but this chair is terrible. I mean, it is amazing.
But, Mr. Turley, go ahead.
Mr. Turley. Well, it's a challenge to think of anything I
was not able to cover in my robust exchange with majority
counsel, but I'd like to try.
Mr. Collins. Go right ahead.
Mr. Turley. There's a couple of things I just wanted to
highlight, I'm not going to take a great deal of time. I
respect my colleagues, I know all of them, and I consider them
friends. And I certainly respect what they have said today. We
have fundamental disagreements. And I'd like to start with the
issue of bribery.
The statement has been made, and not just by these
witnesses, but Chairman Schiff and others, that this is a clear
case of bribery. It's not. And Chairman Schiff said that it
might not fit today's definition of bribery, but it would fit
the definition back in the 18th century.
Now, putting aside Mr. Schiff's turn toward originalism, I
think that it might come as a relief to him and his supporters
that his career will be a short one. That there is not an
originalist future in that argument.
The bribery theory being put forward, it's as flawed in the
18th century as it is in this century. The statement that was
made by one of my esteemed colleagues is that bribery really
wasn't defined until much later, there was no bribery statute,
and that is certainly true. But it obviously had a meaning,
that's why they put it in this important standard.
Bribery was not this overarching concept that Chairman
Schiff indicated. Quite to the contrary. The original standard
was treason and bribery. That led Mason to object that it was
too narrow. If bribery could include any time you did anything
for personal interest instead of public interest, if you have
this overarching definition, that exchange would have been
completely useless.
The Framers didn't disagree with Mason's view that bribery
was too narrow. What they disagreed with was when he suggested
maladministration to add to the standard because he wanted it
to be broader. And what James Madison said is that that's too
broad. That that would essentially create what you might call a
vote of no confidence in England. It would basically allow
Congress to toss out a President that they did not like.
But, once again, we're all channelling the intent of the
Framers, and that's always a dangerous thing to do. The only
more dangerous spot to stand in is between Congress and an
impeachment as an academic. But I would offer instead the words
of the Framers themselves. You see, in that exchange they
didn't just say bribery was too narrow, they actually gave an
example of bribery, and it was nothing like what was described.
When the objection was made by Mason, I'm so sorry, made by
Madison, ultimately the Framers agreed. And then Morris, who
was referred to earlier, did say we need to adopt this
standard. But what was left out was what came afterwards. What
Morris said is that we need to protect against bribery because
we don't want anything like what happened with Louis XIV and
Charles II. The example he gave of bribery was accepting actual
money as the Head of State.
So what had happened in that example that Morris gave as
his example of bribery, was that Louis XIV, who was a bit of a
recidivist when it came to bribes, gave Charles II a huge
amount of money, as well as other benefits, including,
apparently, a French mistress, in exchange for the secret
Treaty of Dover of 1670. It also was an exchange for his
converting to Catholicism. But that wasn't some broad notion of
bribery, it was actually quite narrow. So I don't think that
dog will hunt in the 18th century, and I don't think it will
hunt today.
Because if you look at the 21st century, bribery is well-
defined. And you shouldn't just take our word for it, you
should look to how it's defined by the United States Supreme
Court.
In a case called McDonnell v. United States, the Supreme
Court looked at a public corruption bribery case. This was a
case where gifts were actually received. Benefits were actually
extended. There was completion. This was not some hypothetical
of a crime that was not fulfilled or an action that was not
actually taken.
The Supreme Court unanimously overturned that conviction
unanimously. And what they said was that you cannot take the
bribery crime and use what they called a boundless
interpretation. All the justices said that it's a dangerous
thing to take a crime like bribery and apply a boundless
interpretation. They rejected the notion, for example, that
bribery could be used in terms of setting up meetings and other
types of things that occur in the course of a public service
career.
So what I would caution the committee is that these crimes
have meaning. It gives me no joy to disagree with my colleagues
here. And I really don't have a dog in this fight, but you
can't accuse a President of bribery, and then when some of us
note that the Supreme Court has rejected your type of boundless
interpretation, say, well, it's just impeachment, we really
don't have to prove the elements. That is a favorite mantra
that is served close enough for jazz.
Well, this isn't improvisational jazz. Close enough is not
good enough. If you're going to accuse a President of bribery,
you need to make it stick because you're trying to remove a
duly elected President of the United States.
Now, it's unfair to accuse someone of a crime. And when
others say, well, those interpretations you're using to define
the crime are not valid, and to say they don't have to be valid
because this is impeachment. That has not been the standard,
historically.
My testimony lays out the criminal allegations in the
previous impeachments. Those were not just proven crimes, they
were accepted crimes. That is, even the Democrats on that--the
Judiciary Committee agreed that Bill Clinton had committed
perjury. That is on the record. And a Federal judge later said
it was perjury.
In the case of Nixon, the crimes were established. No one
seriously disagreed with those crimes. Now, Johnson is the
outlier because Johnson was a trap door crime. They basically
created a crime knowing that Johnson wanted to replace
Secretary of War Stanton. And Johnson did because they had
serious trouble in the cabinet.
So they created a trap door crime, waited for him to fire
the Secretary of War, and then they impeached him. But there's
no question that he committed the crime, it's just the
underlying statute was unconstitutional.
So I would caution you not only about bribery but also
obstruction. I'm sorry, ranking member, you----
Mr. Collins. No, you're doing a good job. Go ahead.
Mr. Turley. I'd also caution you about obstruction.
Obstruction is a crime also with meaning. It has elements. It
has controlling case authority. The record does not establish
obstruction in this case. That is, what my esteemed colleague
said was certainly true. If you accept all of their
presumptions, it would be obstruction.
But impeachments have to be based on proof, not
presumptions. That's the problem when you move towards
impeachment on this abbreviated schedule that has not been
explained to me, why you want to set the record for the fastest
impeachment. Fast is not good for impeachment. Narrow, fast
impeachments have failed, just ask Johnson.
So the obstruction issue is an example of this problem. And
here is my concern. The theory being put forward is that
President Trump obstructed Congress by not turning over
material requested by the committee. And citations have been
made to the third article of the Nixon impeachment.
First of all, I want to confess, I have been a critic of
the third article of the Nixon impeachment my whole life. My
hair catches on fire every time someone mentions the third
article. Why? Because you would be replicating one of the worst
articles written on impeachment.
Here is the reason why. Peter Rodino's position as Chairman
of Judiciary was that Congress alone decides what information
may be given to it alone. His position was that the courts have
no role in this. And so if any--by that theory, any refusal by
a President, based on executive privilege or immunities, would
be the basis of impeachment. That is essentially the theory
that's being replicated today.
President Trump has gone to Congress--to the courts. He's
allowed to do that. We have three branches, not two. I happen
to agree with some of your criticism about President Trump,
including that earlier quote where my colleagues talked about
his saying that there's this Article II, and he gives his
overriding interpretation. I share that criticism. You're doing
the same thing with Article I.
You're saying Article I gives us complete authority that
when we demand information from another branch, it must be
turned over or we'll impeach you in record time. Now, making
that worse is that you have such a short investigation. It's a
perfect storm. You set an incredibly short period, demand a
huge amount of information, and when the President goes to
court, you then impeach him. Now, does that track with what
you've heard about impeachment? Does that track with the rule
of law that we've talked about?
So on obstruction, I would encourage you to think about
this. In Nixon, it did go to the courts, and Nixon lost. And
that was the reason Nixon resigned. He resigned a few days
after the Supreme Court ruled against him in that critical
case. But in that case, the Court recognized there are
executive privilege arguments that can be made. It didn't say,
you had no right coming to us, don't darken our doorstep again.
It said, we've heard your arguments, we've heard Congress'
arguments, and you know what, you lose. Turn over the material
to Congress. What that did for the judiciary is it gave this
body legitimacy. It wasn't the Rodino extreme position that
only you decide what information can be produced.
Now, recently there's some rulings against President Trump,
including a rule involving Don McGahn. Mr. Chairman, I
testified in front of you a few months ago, and if you recall,
we had an exchange and I encouraged you to bring those actions.
And I said I thought you would win. And you did. And I think it
was an important win for this committee because I don't agree
with President Trump's argument in that case. But that's an
example of what can happen if you actually subpoena witnesses
and go to court.
Then you have an obstruction case because a court issues an
order. And unless they stay that order by a higher court, you
have obstruction. But I can't emphasize this enough, and I'll
just say it one more time. 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. You're doing
precisely what you're criticizing the President for doing. We
have a third branch that deals with conflicts of the other two
branches. And what comes out of there and what you do with it
is the very definition of legitimacy.
Mr. Collins. Let's continue on. Let's unpack what you've
been talking about. First of all, the McDonnell case, how was
that decided? Was that a very split court? Were they really
torn about that? That case came out how?
Mr. Turley. Yeah, it came out unanimous, so did a couple of
the other cases I cite in my testimony, which also refute these
criminal theories.
Mr. Collins. One of the things that you said also, and I
think it could be summed up, and I use it sometimes, it's the
layman's language here, is facts don't matter. And that's what
I heard a lot of in the 45 minutes.
Well, the facts said this or the facts are disputed this,
but if this, if that, if this, it rises to an impeachment
level, and that was sort of what you're saying that crimes--I
think your word was crimes have meanings. And I think this is
the concern that I have.
Is there a concern that if we just say that facts don't
matter, that we're also, as you've said, abusing our power as
we go forward here in looking at what people would actually
deem as an impeachable offense?
Mr. Turley. I think so. And part of the problem is to bring
a couple of these articles, you have to contradict the position
of President Obama. President Obama withheld evidence from
Congress in Fast and Furious, an investigation, a rather
moronic program that led to the death of a Federal agent.
President Obama gave a sweeping argument that he was not
only not going to give evidence to this body, but that a court
had absolutely no role in determining whether he could withhold
the evidence.
Mr. Collins. Mr. Turley, I have a question on that because
you brought up Mr. Obama and you brought up other Presidents in
this process. Is there not an obligation by the Office of the
President, we'll just use that term, not to be Obama, Trump,
Clinton, anybody.
Isn't there an obligation by the President to actually
assert the constitutional privileges or authorities that have
been given or when accused of something or a crime or anything
else?
Mr. Turley. Yeah. I think that President Obama has invoked
too broadly. But, on the other hand, he has actually released a
lot of information. You know, I've been friends with Bill Barr
for a long time. We disagree on executive privilege.
I'm a Madisonian scholar, I tend to favor Congress in
disputes. And he is the inverse. His natural default is Article
II. My natural default is Article I. But he actually has
released more privileged information than any attorney general
in my lifetime, including the Mueller report. These transcripts
of these calls would be core executive privilege material,
there is no question about that.
Mr. Collins. And that is something, again, not pointed out
when you're doing a back and forth like we're doing. The
transcript of the call released, the things that have been
released to Mueller. As we go back through this, there has been
work in progress by this administration.
I think the interesting point that I want to talk about is
two things. Number one, Congress is abuse of its own power,
which has not been discussed here, even internally, where we
have had committees not willing to let Members see transcripts.
Not being willing to give those up under the guise of
impeachment, or you shouldn't be able to see them. Although,
the rules of the House were never invoked to stop that.
What we're seeing here, and I want to hit something else
before we move on to something else, is the timing issue that
you talked about here. Again, I believe we talked about this
with the Mueller report, we talked about this with the
everything else. This is one of the fastest, you know, we're on
track--I said this earlier, we're on a clock. The clock and the
calendar are seemingly dominating this. Irregardless of what
anybody on this committee, and especially Members not of this
committee, to think about what we're actually seeing of fact
witnesses and people moving forward, we don't have that yet.
So the question becomes, is an election pending when facts
are in dispute, and you made mention of this. This is one in
which the facts are not unanimous. There's not universal,
there's not even bipartisan agreement on the facts and what
they lead to, especially when there's exculpatory evidence that
has been presented, not in the Schiff report but in other
reports.
Does that timing bother you, from a historical perspective,
not only in the past but moving forward as well?
Mr. Turley. Yeah. Fast and narrow is not a good recipe for
impeachment. That's the case with Johnson. Narrow was the case
with Clinton. They tend not to survive. They tend to collapse
in front of the Senate.
Impeachments are like buildings, there's a ratio between
your foundation and your height. And this is the highest
structure you can build under the Constitution. You want to
build an impeachment, you have to have a foundation broad
enough to support it. This is the narrowest impeachment in
history. You could argue with Johnson--Johnson might actually
be the fastest impeachment.
Johnson actually was--what happened in Johnson was actually
the fourth impeachment attempt against Johnson. And, actually,
the record goes back a year before, they laid that trap door a
year before, so it was not as fast as it made it out--it might
appear.
Mr. Collins. And, again, let's go back--I want to go back
to something else. And talked about bribery, and Mr. Taylor is
going to address a good bit of that, but I want to go back to
something you talk about because it really bothers, I think the
perception out there of what's going on here and the disputed
transcript being--the call has been laid out there, the
President said, I wanted nothing for this.
There is all this exculpatory evidence that was not
presented in the last 45 minutes, but there's one thing that's
interesting, and it's been reported in the mainstream media,
and it goes back to your issue, does crimes matter, or what
this definition is.
The House--the majority initially accused the President,
and they kept saying quid pro quo, and we still hear it as we
go through, but then, as reported, they used a political focus
group to determine whether the phrase polled well. And
apparently it didn't poll well, so they agreed to change their
theory of the case to the bribery.
Does that not just feed into more about what you're saying
how where actually the crime matters and that facts do matter
in a case like this, or the at least it should matter?
Mr. Turley. It does. There's a reason why every past
impeachment has established crimes, and it's obvious. It's not
that you can't impeach on a noncrime, you can. In fact,
noncrimes have been part of past impeachments, it's just that
they have never gone up alone or primarily as the basis for
impeachment. That's the problem here. If you prove a quid pro
quo, you might have an impeachable offense. But to go up only
on a noncriminal case would be the first time in history. So
why is that the case?
The reason is that crimes have an established definition
and case law. So there's a concrete, independent body of law,
that assures the public that this is not just political. That
this is a President who did something they could not do. You
can't say the President is above the law if you then say the
crimes you accuse him of really don't have to be established.
Mr. Collins. I think that's the problem right now that many
Members of this House, Members of this body, and especially the
American public are looking at that if you say it's above the
law but then you don't define it or you define the facts to
whatever you want to have, that is the ultimate railroad that
everybody in this country should not be afforded.
Everyone is afforded due process. Everyone is afforded the
process to actually make their case heard. That's the concern
that I have in this committee right now, and we've already seen
it voted down that we're not going to look at certain fact
witnesses. We're not even been promised other hearings in which
this committee.
And in the words and the concerns that echoed almost 20
years ago from the chairman where he did not want to take the
advice of another body or entity giving us, the Judiciary
Committee, a report, and then acting as a rubber stamp if we
didn't do this.
Just as a reminder, it was almost 2 1/2 weeks before the
discussion of this kind of a hearing back then before the
hearing actually took place. These are the kind of things that,
as timing goes, I think the obvious point here is that timing
is becoming more of the issue because the concern, as been
stated before, about elections.
They're more concerned about trying to fit the facts in to
what the President supposedly did, presumably did, and make
those hypotheticals stick to the American public. The problem
is their timing, the definition of crimes, the definition of
the fact--the bribery as defined by the Supreme Court is not
making their case, it's not fitting what they need to do.
The issue that we have to deal with going forward is, why
the rush? Why do have still not have the information from the
Intelligence Committee? Why is the Inspector General's report
from the IC Committee being withheld even in a nonclassified--
in a classified setting. These are the problems that you have
now highlighted and I think that need to be. And this is why
the next 45 minutes and the rest of the day is going to be
applicable, because both sides matter.
And at the end of the day, this is a fast impeachment, the
fastest we're seeing, based on disputed facts on crimes or
disturbances that are made up with the facts to fit each part.
With that, I'm going to turn it over to my counsel, Mr.
Taylor.
Mr. Taylor. Professor Turley, I'd like to turn to the
subject of partisanship as the Founders feared it and as it
exists today. It's a subject Alexander Hamilton was very
concerned about when it came to impeachment. He wrote some
prescient words in Federalist Paper, Number 65, in advocating
for the ratification of the Constitution. The Federalist Papers
laid out the reasons Madison and, principally Hamilton, thought
the impeachment clause was necessary, but he also flagged
concerns.
He said: In many cases of impeachment, it will connect
itself with the pre-existing factions and will enlist all their
animosities, partialities, influence, and interests on one
side, or on the other. And in such cases, there will always be
the greater danger that the decision will be regulated more by
the comparative strength of parties than by the real
demonstrations of innocence or guilt.
Professor Turley, do you think Hamilton predicted a real
danger here of hyperpartisan impeachments?
Mr. Turley. Well certainly, that has been proven to be the
case, it is certainly of the two impeachments that we have
seen. It's also important to note, by the way, that we often
think that our times are unique.
You know, this provision wasn't just written for times like
ours, it was written in times like ours. That is, you know,
these are people that were even more severe than the rhetoric
today. I mean, you have to keep in mind, Jefferson referred to
the administration of the Federalist as the reign of the
witches.
So this was not a period where people didn't have the
strong feelings, and indeed, when people talk about members of
this committee acting like they want to kill each other. Back
then they were actually trying to kill each other, that's what
the sedition law was. You were trying to kill people that
disagreed with you. But what's notable is they didn't have a
whole slew of impeachments. They knew not to do it. And I think
that that's a lesson that actually can be taken from that
period.
That the Framers created a standard that would not be
endlessly fluid and flexible. And that standard has kept us
from impeachments despite periods in which we have really
despised each other. And that, I think, is the most distressing
things for most of us today. There's so much more rage than
reason. You can't even talk about these issues without people
saying, you must be in favor of the Ukrainians taking over the
country, or the Russians moving into the White House.
At some point, as people, we have to have a serious
discussion about the grounds to remove a duly elected
President.
Mr. Taylor. Professor Turley, in your testimony you said
that when it comes to impeachment, we don't need happy
idealogical warriors, we need circumspect legal analysis. But
let's take a quick look at the deeply partisan landscape on
which this particularly partisan impeachment is being waged.
I mean, the Democratic leaders pushing Trump's impeachment
represent some of the most far left urban coastal areas of the
country. The bar graphs here show counties, and the height of
the bars indicate total votes cast, and the color of the bars
show the margin of victory for the winner in the 2016 election.
As you can see, the parts of the country represented by
these Democrat impeachment leaders voted overwhelmingly for
Hillary Clinton during the last Presidential election. Also,
during the 2016 Presidential election, lawyer campaign
contributions tilted 97 percent for Clinton, 3 percent for
Trump. And the situation is essentially the same at law schools
around the country, including those represented on the panel
here today.
Now, Professor Turley, I'd like to turn now to the partisan
process that defines these impeachment proceedings. This is how
the Nixon impeachment effort was described in the bipartisan
1974 staff report. We're talking about the initiation of the
impeachment inquiry.
It says, this action was not partisan, it was supported by
the overwhelming majority of both political parties, and it
was. Regarding the authorization of the Clinton impeachment
inquiry, it was supported by all Republicans and 31 Democrats.
Now, fast forward to the current impeachment. The House
Democrats' Trump impeachment drive was subsequently approved
only by Democrats, and indeed it was approved over the
opposition of two Democrats and all Republicans.
Professor Turley, how does this trend comport with how the
Founders understood how impeachment should operate?
Mr. Turley. Well I believe the Founders certainly had
aspirations that we would come together as a people, but they
didn't have any delusions. It certainly was not something that
they achieved in their own lifetime. Although, you'd be
surprised that some of these Framers actually did, at the ends
of their lives, including Jefferson and Adams, sort of
reconcile.
Indeed, I think one of the most weighty and significant
moments in constitutional history is the one that is rarely
discussed. That Adams and Jefferson reached out to each other.
That they wanted to--they wanted to reconcile before they died,
and they met and they did. And maybe that is something that we
can learn from.
But I think that the greater thing I would point to is the
seven Republicans in the Johnson impeachment. If I could just
read one thing to you, and everyone often talks about one of
the Senators, but not this one. And it's Lyman Trumbull, who
was a fantastic Senator. He became a great advocate for civil
liberties.
You have to understand that most of these Senators, when it
was said that they jumped into their political graves, it was
true. Most of their political careers ended. They knew they
would end because of the animosity of the period.
Trumbull said the following. He said: Once this set the
example of impeaching a President for what, when the excitement
of the hour shall have subsided, will be regarded as
insufficient causes. No future President will be safe who
happens to differ from the majority of the House and two-thirds
of the Senate.
He said: I tremble for the future of my country. I cannot
be an instrument to produce such a result, and that the hazard
of the ties, even of friendship and affection to calmer times
shall do justice to my motives, no alternatives are left to me.
And he proceeded to give the vote that ended his career.
You can't wait for calmer times. The time for you is now.
And I would say that what Trumbull said has more bearing today,
because I believe that this is much like the Johnson
impeachment, it's manufactured until you build a record. I'm
not saying you can't build a record, but you can't do it like
this, and you can't impeach a President like this.
Mr. Taylor. Now Professor Turley, there's a recent book on
impeachment by Harvard law professor Laurence Tribe and Joshua
Matz that discusses what they consider to be a legitimate
impeachment process. The book is pretty anti-Trump, it's called
To End a Presidency.
And in that book the authors state the following: When an
impeachment is purely partisan or appears that way, it is
presumptively illegitimate. When only Republicans or only
Democrats view the President's conduct as justifying removal,
there's a strong risk that policy disagreements or partisan
animus have overtaken the proper measure of congressional
impartiality.
Another quote is: We can also expect that opposition
leaders to the President will be pushed to impeach and will
suffer internal blowback if they don't. The key question is
whether they will cave to this pressure. One risk of our broken
politics is that the House will undertake additional doomed
partisan impeachments, a development that would be disastrous
for the Nation as a whole.
Professor Turley, is that advice being followed by House
Democrats in this case?
Mr. Turley. Not on this schedule. The one thing, if you
look at--I laid out the three impeachments. The one thing that
comes out of those impeachments in terms of what bipartisan
support occurred, is that impeachments require certain periods
of saturation and maturation. That is, the public has to catch
up.
I'm not prejudging what your record would show, but if you
rush this impeachment, you're going to leave half the country
behind. And, certainly, that's not what the President--what the
Framers wanted.
You have to give the time to build a record. This isn't an
impulse buy item. You're trying to remove a duly elected
President of the United States, and that takes time and takes
work. But at the end, if you look at Nixon, which was the gold
standard in this respect, the public did catch up. They
originally did not support impeachment, but they changed their
mind. You changed their mind, and so did, by the way, the
courts, because you allowed these issues to be heard in the
courts.
Mr. Taylor. Professor Turley, the Nixon and Clinton
impeachments were debated solidly in the high crimes category,
correct?
Mr. Turley. Yes.
Mr. Taylor. Crimes were at issue. But on the evidence
presented so far, is it your view that there's no credible
evidence that any crime was committed by President Trump?
Mr. Turley. Yes, I've gone through all of the crimes
mentioned. They do not meet any reasonable interpretation of
those crimes, and I'm relying on express statements from the
Federal courts.
I understand that the language in the statutes are often
broad, that's not the controlling language. It's the language
of the interpretation of Federal courts. And I think that all
of those decisions stand mightily in the way of these theories.
And if you can't make out those crimes, then don't call it
that crime. If it doesn't matter, then what's the point. Call
it treason. Call it endangered species violations. If none of
this matters.
Mr. Taylor. So that would put the Democrats move to impeach
President Trump in the category of High Misdemeanors. In James
Madison's notes of the constitutional convention debates, they
clearly show that the term High Misdemeanor was explicitly
referred to as a technical term. And it wasn't just something
that any majority of partisan members might happen to think was
at any given time.
And often when there's a debated about a technical term,
people turn to dictionaries. And the first truly comprehensive
English dictionary was Samuel Johnson's, a dictionary of the
English language, it was first published in 1755. And the
Founders in many of their libraries had this book and on the
theirs desks. And the Supreme Court still cites Johnson's
dictionary to determine the original public understanding of
the words used in the Constitution.
So here is how the 1785 Edition of Johnson's dictionary
defines the relevant terms of High Misdemeanor. High, the
relevant sub-definition is, capital, great, opposed to little,
as high treason. The definition of misdemeanor is defined as
something less than an atrocious crime. And atrocious is
defined as wicked in a high degree, enormous, horribly
criminal.
So if you look at how these words were defined during the
time the Constitution was debated and ratified, a misdemeanor
is something less than an atrocious crime, and atrocious is
wicked in a high degree. And as a result, a High Misdemeanor
must be something like just less than a crime that is wicked in
a high degree.
Now, Professor Turley, does that generally comport with
your understanding of the phrase High Misdemeanor, that was
understood by the Founders, with the purpose of narrowing that
phrase to prevent the sorts of abuses that you've described?
Mr. Turley. It did. I mean, if you compare this to the
extradition clause, the language that was used was different
for a reason. They did not want to establish a type of broad
meeting. According to the view of some people as to the meaning
of High Crimes and Misdemeanors, those provisions would be
essentially identical, and that's clearly not what they wanted.
Mr. Taylor. Professor Turley, next I'd like to explore how
this impeachment is based on no crime and no request for false
information, unlike the Nixon and Clinton impeachments.
I'd like to start with some background. The American media
for years has been asking questions about former Vice President
Biden's son and his paid involvement with a corrupt Ukrainian
energy company, Burisma, is one example of those media reports
from June 20, 2019, it was an ABC News investigation, titled:
Hunter Biden's Foreign Deals: Did Joe Biden's Son Profit Off
Father's Position as Vice President? There's a still clip of it
here with a Burisma promotional video.
And many have seen the video of Joe Biden talking about
getting the Ukrainian prosecutor, who was investigating
Burisma, fired. And a New York Times article says, from May
1st, 2019, referring to Joseph R. Biden. One of his most
memorable performances came on a trip to Kyiv in March 2016
when he threatened to withhold a billion dollars in United
States loan guarantees if Ukraine's leaders did not dismiss the
country's top prosecutor. Among those who had a stake in the
outcome was Hunter Biden. Mr. Biden's younger son, who at the
time was on the board of an energy company owned by a Ukrainian
oligarch, who had been in the sites of the fired prosecutor
general.
So even if Hunter Biden engaged in no crimes regarding his
sitting on the board of Burisma, if an investigation led to the
bankruptcy of the corrupt company, Hunter Biden's lucrative
position on the Burisma board would have been eliminated, along
with his $50,000 a month payments. That was his stake in a
potential prosecution involving the company.
In fact, even Neal Katyal, the former acting solicitor
general under President Obama, in his recent book entitled
Impeach, says the following: Is what Hunter Biden did wrong?
Absolutely. Hunter Biden had no real experience in the energy
sector, which made him wholly unqualified to sit on the board
of Burisma. The only logical reason the company could have had
for appointing him was his ties to Vice President Biden. This
kind of nepotism isn't only wrong, it is a potential danger to
our country, since it makes it easier for foreign powers to buy
influence. No politician from either party should allow a
foreign power to conduct this kind of influence peddling with
their family members.
Also, Lieutenant Colonel Vindman was asked at his hearing:
Would it ever be U.S. Foreign policy, in your experience, to
ask a foreign leader to open a political investigation? And he
replied: Certainly, the President is well within his right to
do that.
So the American media and others were asking questions
about Hunter Biden, his involvement in Ukraine. And President
Trump, in his call with the Ukrainian President, simply asked
the same questions the media was asking.
Now, Professor Turley, it is your understanding that the
House impeached Nixon for helping cover up his administration's
involvement in a crime, and that the evidentiary record showed
Nixon knew of criminal acts and sought to conceal them,
including tape recordings of Presidential Nixon ordering a
cover-up of the Watergate break-in shortly after it occurred?
Mr. Turley. It is.
Mr. Taylor. And it is also your understanding that the
House impeached Clinton for the crime of lying under oath to
deny a woman suing him for sexual harassment, evidence she was
legally entitled to?
Mr. Turley. That's correct.
Mr. Taylor. So there were requests for false information in
both the Nixon and Clinton scandals by the President's aides or
associates or by the President himself. Correct?
Mr. Turley. Yes.
Mr. Taylor. But there are no words in the four corners of
the transcript of President Trump's call that show a request
for false information, are there?
Mr. Turley. No. And that's one of the reasons why if you
want to establish the opposing view, you have to investigate
this further.
Mr. Taylor. Now, let me walk through the standard of
evidence House Democrats insisted upon during the Clinton
impeachment. The minority views in the Clinton impeachment
report were signed by, among others, current Senator Minority
Schumer and current House Judiciary Chairman Nadler, and they
say that: One of the professors who testified, quote, has
meticulously documented how in the Nixon inquiry, everyone
agreed, the majority, the minority, and the President's
counsel, that the standard of proof for the committee and the
House was clear and convincing evidence.
Professor Turley, would you agree that the evidence
compiled to date by House Democrats during these current
impeachment proceedings fails to meet the standard of clear and
convincing evidence?
Mr. Turley. I do by considerable measure.
Mr. Taylor. Now, let me turn again to the book To End a
Presidency. In that book, the author states the following,
quote: Except in the most extraordinary circumstances,
impeaching with a partial or plausibly contested understanding
of key facts is a bad idea.
Professor Turley, do you think that impeaching in this case
would constitute impeaching with a partial or plausibly
contested understanding of key facts?
Mr. Turley. I think that that's clear because this is one
of the thinnest records ever to go forward on impeachment. I
mean, the Johnson record, once again, we can debate, because
that was the fourth attempt at an impeachment.
But this is certainly the thinnest of a modern record. If
you take a look at the size of the record of Clinton and Nixon,
they were massive in comparison to this, which is almost wafer
thin in comparison. And it has left doubts. Not just doubts in
the minds of people supporting President Trump, doubts in the
minds of people like myself, about what actually occurred.
There's a difference between requesting investigations and
a quid pro quo. You need to stick the landing on the quid pro
quo. You need to get the evidence to support it. It might be
out there, I don't know, but it's not in this record.
I agree with my colleagues, we've all read the record and I
just come to a different conclusion. I don't see proof of a
quid pro quo, no matter what my presumptions, assumptions, or
bias might be.
Mr. Taylor. On that point, I'd like to turn now to the
current impeachment procedures. Professor Turley, would you
agree that a full and fair adversary system in which each side
gets to present its own evidence and witnesses is essential to
the search for truth?
Mr. Turley. It is. And the interesting thing, on the
English impeachment model that was rejected by the Framers,
they took the language, but they actually rejected the model of
the impeachment from England, particularly in terms of
Hastings. But even in England, it was a robust adversarial
process.
And if you want to see adversarial work, take a look at
what Edmund Burke did to Warren Hastings, he was on him like
ugly on moose for the entire trial.
Mr. Taylor. And as you know, in the minority views and the
Clinton impeachment report, the House Democrat wrote the
following: We believe it is incumbent upon the committee to
provide these basic protections, as Representative Barbara
Jordan observed during the Watergate inquiry. Impeachment not
only mandates due process, but due process quadrupled.
The same minority views also support the right to cross-
examination in a variety of context in the Clinton example.
Now, Professor Turley, you describe how Monica Lewinsky
wasn't allowed to be called as a witness in the Senate
impeachment trial. And after her original testimony, she
revealed how she had been told to lie about her relationship
with President Clinton by his close associates. It is a
cautionary tale about the dangers of denying key witnesses. Can
you elaborate on that?
Mr. Turley. Yeah, the only reason I mentioned that is that
was in the portion of my testimony dealing with how you
structure these impeachments.
What happened during the Clinton impeachment, and it came
up during the hearing that we had previously, was a question of
how much the House had to do in terms of Clinton impeachment
because you had this robust record created by the independent
counsel, and they had a lot of testimony, videotapes, et
cetera. So the House basically incorporated that. And the
assumption was that those witnesses would be called at the
Senate, but there was a failure at the Senate.
The rules that were applied, in my view, were not fair.
They restricted witnesses to only three. And that's why I
brought up the Lewinsky matter. About a year ago, Monica
Lewinsky revealed that she had been told that if she signed
that affidavit that we now know is untrue, that she would not
be called as a witness. If you actually called live witnesses,
that type of information would have been part of the record.
Mr. Collins. Thank you.
Mr. Chairman, I yield back.
Chairman Nadler. The gentleman yields back. I note that
this is the moment in which the White House would have had an
opportunity to question the witnesses, but they declined their
invitation. So we will now proceed to questions under the 5-
minute rule. I yield myself 5 minutes for the purpose of
questioning the witnesses.
Professor Feldman, would you respond to Professor Turley's
comments about bribery, especially about the relevance of the
elements of criminal bribery?
Mr. Feldman. Yes. Bribery had a clear meaning to the
Framers, it was--when the President, using the power of his
office, solicits or receives something of personal value from
someone affected by his official powers.
And I want to be very clear. The Constitution is law. The
Constitution is the supreme law of the land. So, of course,
Professor Turley is right, you wouldn't want to impeach someone
who didn't violate the law, but the Constitution, the supreme
law of the land, specifies bribery as a ground of impeachment
as it specifies other High Crimes and Misdemeanors. Bribery had
a clear meaning.
If the House believes that the President solicited
something of value in the form of investigations or an
announcement of investigations, and that he did corruptly for
personal gain, then that would constitute bribery under the
meaning of the Constitution. And it would not be lawless. It
would be bribery under the law.
Chairman Nadler. So the Supreme Court case in McDonnell
interpreting the Federal bribery statute and other decisions
interpreting the statutes would not be relevant?
Mr. Feldman. The Constitution is the supreme law, and the
Constitution specifies what bribery means. Federal statutes
can't trump the Constitution. They can't defeat what's in the
Constitution.
Chairman Nadler. Thank you.
Professor Gerhardt, would you respond to Professor Turley's
comments about obstruction of justice or obstruction of
Congress, please.
Mr. Gerhardt. Yes. On obstruction of justice, one thing I
want to emphasize, that obstruction of justice is not just
about obstruction of a court, it's obstruction of any lawful
proceeding. And so the obstruction isn't limited to whatever is
happening in the courts, and obviously here there are judicial
proceedings going on, but there's also a really critical
Congressional proceeding, which brings us to obstruction of
Congress.
With obstruction of Congress, I don't think--in fact, I can
say, I know there's never been anything like the President's
refusal to comply with subpoenas from this body. These are
lawful subpoenas. These have the force of law to them. These
are the things that every other President has complied with,
and actually acted in alignment with, except for President
Nixon in a small but significant set of materials.
Chairman Nadler. Professor Turley implied that as long as
the President asserts a fanciful, ultimately nonexistent
privilege like absolute immunity, he can't be charged with
obstruction of Congress because, after all, it hasn't gone
through the courts yet. Would you comment on that?
Professor Gerhardt.
Mr. Gerhardt. I'm sorry, I missed part of the question.
Please, I'm sorry.
Chairman Nadler. Professor Turley implied that we can't
charge the President with obstruction of Congress for refusing
all subpoenas as long as he has any fanciful claim until the
courts reject those fanciful claims.
Mr. Gerhardt. I have to respectfully disagree. No, his
refusal to comply with those subpoenas is an independent event.
It's a part from the courts. It's a direct assault on the
legitimacy of this inquiry, which is crucial to the exercise of
this power.
Chairman Nadler. Thank you. Professor Karlan, I'll give you
a chance to respond, if you would like as well to the same
question.
Ms. Karlan. I wanted to respond to the first question about
bribery. If I could instead. Which is----
Chairman Nadler. Yeah. Go ahead.
Ms. Karlan. Although counsel for the minority read Samuel
Johnson's definition of High Crime and Misdemeanor, he didn't
read the definition of bribery. Now, I have the 1792 version of
Johnson's dictionary, I don't have the initial one. And there
he defines bribery as the crime of giving or taking rewards for
bad practices.
So if you think it's a bad practice to deny military
appropriations to an ally that have been given to them. If you
think it's a bad practice not to hold a meeting to buck up the
legitimacy of a government that's on the front line, and you do
that in return for the reward of getting help with your
reelection, that's Samuel Johnson's definition of bribery.
Chairman Nadler. Professor Feldman, if Washington were here
today, if he were joined by Madison and Hamilton and other
Framers, what do you believe they would say if presented with
the evidence before us about President Trump's conduct?
Mr. Feldman. I believe the Framers would identify President
Trump's conduct as exactly the kind of abuse of office, High
Crime and Misdemeanor that they were worried about, and they
would want the House of Representatives to take appropriate
action and to impeach.
Chairman Nadler. And they would find obstruction of
justice, obstruction of Congress, and abuse of power, or some
of them?
Mr. Feldman. I believe that if the evidence supported those
things in their minds, and if the Congress determines that that
is what the evidence means, then they would believe strongly
that that is what Congress ought to do.
Chairman Nadler. Thank you. I'll yield back the balance of
my time. I'll now recognize the Ranking Member of the Judiciary
Committee, the gentleman from Georgia, Mr. Collins, for 5
minutes for questioning the witnesses.
Mr. Collins. This just keeps getting more amazing. I think
we just put in the jury pool the Founding Fathers, and said,
what would they think? I don't think we have any idea what they
would think, in all due respect, with this because of the
different times and different things we've talked about.
But, also, to in some way insinuate on a live mike with a
lot of people listening, that the Founding Fathers would have
found President Trump guilty, is just simply malpractice with
these fact before us. That is just simply pandering to a
camera. That is just simply not right. I mean, this is amazing.
We can disagree--what's amazing on this committee is we
don't even disagree on the facts. We cannot even find a fact
right now, with it--it is not going through the public
testimony, and also the transcripts and all, it is not.
Mr. Turley, are we going to deputize someone between now
and the Founders into the jury pool here?
Mr. Turley. Well, first of all, only I will speak for James
Madison. No, no, we all will speak for James Madison with about
the same level of accuracy. It is a form of necromancy that
academics do all the time, and that's what we get paid for. But
I just want to note a couple things. First of all I do find it
rather surprising that you would have George Washington in this
jury pool. I would strike him for cause.
George Washington was the first guy to raise extreme
executive privilege claims. He had a rather robust view of what
a President could say. If you were going to make a case to
George Washington that you could impeach over a conversation he
had with another Head of State, I expect his hair--his powdered
hair would catch on fire.
Also, I just want to note one other thing. I am impressed
with carrying an 18th century copy of Samuel Johnson with you.
Ms. Karlan. It's just the online version.
Mr. Turley. It's just the online version. As an academic, I
was pretty darn impressed. I just want to note one thing, which
may explain part of our difference. The statutes today on
bribery are written broadly, just like they were back then.
That was my point.
The meaning of those words are subject to interpretation.
They are written broadly because they don't want them to be too
narrow. That was the case in the 18th century as they are
today.
But the idea that bad practices could be the definition of
bribery. Really? I mean, is that what you get from the
constitutional convention that bad practices--is that why Mason
wanted to put in maladministration because bad practices is not
broad enough? This is where I disagree.
Now, the other thing that I just wanted to note is, and I
have so much respect for Noah, and I'm just going to disagree
on this point. I feel it is a rather circular argument to say,
well, the Constitution is law, upon that, we are in agreement.
But the Constitution refers to a crime. To say, well, you can't
trump the Constitution because it defines the crime. It doesn't
define the crime. It references the crime.
Now, the crime--the examples were given during the
constitutional convention, and those do not comport with bad
practices, they comport with real bribery. But to say that the
Supreme Court's decision on what constitutes bribery is somehow
irrelevant is rather odd. What the Constitution contains is a
reference to a crime, and then we have to decide if that crime
has been committed.
Mr. Collins. And I think one of the things that came out
just a second ago, was also this discussion of, you know, and
we had had this discussion earlier about, is it the
Presidential prerogative and also members of the President's
cabinet to assert privileges and rights. And we talked about
the Fast and Furious with President Obama. Remember, Attorney
General Holder was held in contempt by this body for
withholding and not complying with subpoenas.
I mean, you just can't pick and choose history here, what
you want to have. But I think also you just made a statement,
and it was brought up earlier, talk about bad practice. It is
also the law of the land that we're supposed to ensure that
countries given aid are not corrupt.
And I think this is also something missing from this
discussion, is well, if the President has had a long seeded
distrust of foreign companies, especially Ukraine and others
with a history of corruption.
I made this statement earlier, it's in the report from the
HPSCI side on our side, 68 percent of those polled in the
Ukraine over the previous year had bribed a public official.
Ukraine had corruption issues. It came back from the Obama
administration. It came through the Trump administration. And
our rule is that they have to actually look at the corruption
before giving taxpayer dollars. The President was doing that,
and now it has been blown up because we've now found in this
hearing today, facts really don't matter if we're trying to fit
it into a law or fitting it into a breaking of rule that we
want to impeach on.
And, as I've said, the reason we're doing this is the train
is on the track. This is a clocked calendar impeachment, not a
fact impeachment.
I yield back.
Chairman Nadler. The gentleman yields back. I now recognize
Ms. Lofgren for 5 minutes.
Ms. Lofgren. Thank you, Mr. Chairman. This has been
mentioned only the third time in modern history that the
committee has assumed the grave responsibility of considering
impeachment, and oddly enough, I have been present at all
three. I was staff of Congressman Don Edwards during the Nixon
impeachment, present on the committee during the Clinton
impeachment, and here we are today.
At its core, I think, the impeachment power really is about
preservation of our democratic systems. And the question we
must answer is whether the activity of the President threatens
our Constitution and our democracy. And it's about whether he's
above the law, and whether he's honoring his oath of office.
Now, the House Judiciary Committee staff, and it wasn't me,
it was other staff, wrote an excellent report in 1974, and this
is what they said: Impeachment of a President is a grave step
for the Nation. It is predicated only upon conduct seriously
incompatible with either the constitutional form in principle
of our government or the proper performance of constitutional
duties of the Presidential office.
Ms. Lofgren. And I'd ask unanimous consent to enter the
House Judiciary Committee report on constitutional grounds into
the record.
Chairman Nadler. Without objection.
[The information follows:]
MS. LOFGREN FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Thank you, Mr. Chairman
You know, like President Nixon, the allegations against
President Trump involve serious election-related misconduct.
Nixon's associates burglarized the DNC headquarters, give them
a leg up in his election. Nixon tried to cover up the crime by
obstructing Federal and congressional investigations. He also
abused his powers to target his political rivals, and here
we're confronted with evidence suggesting that President Trump
tried to leverage appropriated military assistance to resist
Russia by Ukraine to convince a foreign ally to announce an
investigation of his political rival.
Professor Karlan, I'd like you to tell me your view on how
President Trump's conduct, meaning his request of the foreign
ally to announce an investigation of his adversary, how does
that compare to what President Nixon did?
Ms. Karlan. Not favorably, because as I suggested in my
opening testimony, it was a kind of doubling down, because
President Nixon abused domestic law enforcement to go after his
political opponents, and what President Trump has done, based
on the evidence that we've seen so far, is he's asked a foreign
country to do that, which means it's not--it's sort of--it's
sort of like a daily double, if you will, of problems.
Ms. Lofgren. All right. Professor Gerhardt, do you have
additional comment on that?
Mr. Gerhardt. I certainly would agree with Professor
Karlan, yes. I think the difficulty here is we need to remember
that impeachable offenses don't have to be criminal offenses,
as you well know. And so what we're talking about is an abuse
of power. We're talking about an abuse of power that only the
President can commit. And there was a systematic, concerted
effort by the President to remove people that would somehow
obstruct or block his ability to put that pressure on Ukraine,
to get an announcement of an investigation. That seems to be
what he cared about, just the mere announcement. And that
pressure produced--was going to produce the outcome he wanted
until the whistleblower put a light on it.
Ms. Lofgren. I want to go back quickly to something
Professor Turley said. As we saw in the Miers case--and I was a
member of the committee when we tried to get her testimony, as
well as the Fast and Furious case, which also was wrongfully
withheld from the Congress--litigation to enforce congressional
subpoenas can extend well beyond the terms of the Presidency
itself. That happened in both of those cases.
Professor Feldman, is it, as Professor Turley seemed to
suggest, an abuse of our power no to go to the courts before
using our sole power of impeachment, in your judgment?
Mr. Feldman. Certainly not. Under the Constitution, the
House is entitled to impeach. That's its power. It doesn't have
to ask permission from anybody and it doesn't have to go
through any judicial process involving judicial branch of
government. That is your decision based on your judgment.
Ms. Lofgren. Thank you.
I'd just like to note that this is not a proceeding that I
looked forward to. It's not an occasion for joy. It's one of
solemn obligation. I hope and believe that every member of this
committee is listening, keeping an open mind, and hoping that
we honor our obligations carefully and honestly.
And with that, I yield back, Mr. Chairman.
Chairman Nadler. The gentlelady yields back. The gentlelady
yields back.
We are expecting votes on the House floor shortly. So we
will recess until immediately after the conclusion of those
votes.
I ask everyone in the room to please remain seated and
quiet while the witnesses exit the room. I want to remind
members of the audience that you may not be guaranteed your
seat if you leave the hearing room at this time.
At this time, the committee will stand in recess until
immediately after the votes.
[Recess.]
Chairman Nadler. The committee will come to order.
When we recessed for our break, we were under the 5-minute
rule. I now recognize the gentleman from Wisconsin, Mr.
Sensenbrenner. Oh, let me repeat that.
The committee will come to order. When we broke for recess,
we were under the 5-minute rule. I now recognize Mr.
Sensenbrenner for 5 minutes to question the witnesses.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
I'm a veteran of impeachments. I've been named by the House
as an impeachment manager in four impeachments, Clinton and
three judges. That's more than anybody else in history. And one
of the things in every impeachment, whether it's the ones that
I was involved in or others that have come before the committee
where I was not a manager, is a debate on what is a high crime
and misdemeanor and how serious does that have to be in order
for it to rise to a level of an impeachable offense.
About 50 years ago, then Republican leader Gerald Ford made
a comment that saying a high crime and misdemeanor is anything
a majority of the House of Representatives deems it to be on
any given day. I don't agree with that, you know. That sets
either a very low bar or a nonexistent bar. And it certainly
would make the President serve at the pleasure of the House,
which was not what the Framers intended when they rejected the
British form of parliamentary democracy where the Prime
Minister and the government could be overthrown by a mere vote
of no confidence in the House of Commons.
So I'm looking at what we're facing here. This whole
inquiry was started out by a comment that President Trump made
to President Zelensky in the July 25 call of, quote, do me a
favor, unquote. There are some who have said it's a quid pro
quo. There are some who have implied that it's a quid pro quo.
But both Trump and Zelensky have said it wasn't and Zelensky
has said there was no pressure on me, and the aid came through
within 6 weeks after the phone call in question was made.
Now, you can contrast that to where there was no
impeachment inquiry to Vice President Biden when he was giving
a speech and said, you know, I held up $1 billion worth of aid
unless the prosecutor was fired within 6 hours. And son of a
bleep, that's what happened.
Now, you know, it seems to me that if you're looking for a
quid pro quo and looking for something that was really over the
top, it was not saying, do me a favor; it was saying, son of a
bleep. That's what happened in 6 hours.
Now, you know, the Republicans, who were in charge of
Congress at the time Biden made that comment, we did not tie
the country up for 3 months and going on 4 now, wrapping
everybody in this town around the axle rod. We continued
attempting to do the public's business.
That's not what's happening here. And I think the American
public are getting a little bit sick and tired of impeachment,
impeachment, impeachment, when they know that less than a year
from now, they will be able to determine whether Donald Trump
stays in office or somebody else will be elected.
And I take this responsibility extremely seriously. You
know, it is an awesome and very grave responsibility, and it is
not one that should be done lightly, it is not one that should
be done quickly, and it is not one without examining all of the
evidence, which is what was done in the Nixon impeachment and
what was done largely by Kenneth Starr in the Clinton
impeachment.
Now, I'd like to ask you, Professor Turley, because your
mind is the only one of the four who are up there that doesn't
seem to have it made up before you walked into the door. Isn't
there a difference between saying, quote, do me a favor and,
quote, son of a bleep, that's what happened in 6 hours' time?
Mr. Turley. Grammatically, yes. Constitutionally, it really
depends on the context. I think your point is a good one in the
sense that we have to determine from the transcript and
hopefully from other witnesses whether this statement was part
of an actual quid pro quo.
I guess the threshold question is, if the President said,
I'd like you to do these investigations--and by the way, I
don't group them together in my testimony. I distinguish
between the request for investigations into 2016 from the
investigation into the Bidens. But if it is an issue of order,
the magnitude of order constitutionally, if you ask, I'd like
to see you do this as opposed to, I have a quid pro quo, you
either do this or you don't get military aid.
Mr. Sensenbrenner. Thank you.
Chairman Nadler. The time of the gentleman is expired.
The gentlelady from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you, Mr. Chairman, for yielding.
Professor Gerhardt said, if what we are talking about today
is not impeachable, then nothing is impeachable. I'm reminded
of my time on the House Judiciary Committee during the 1990s
impeachment and as well a number of Federal judges. I was
guided then not only by the facts, but by the Constitution and
the duty to serve this Nation. I believe, as we greet you
today, that we are charged with a sober and somber
responsibility.
So, Professor Karlan, I'd like you to look at the
intelligence volume where hundreds of documents are behind that
in the Mueller report. Professor Karlan, you studied the
record. Do you think it is, quote, wafer thin, and can you
remark on the strength of the record before us?
Ms. Karlan. So obviously it's not wafer thin. And the
strength of the record is not just in the September--I mean,
the July 25 call. I think that what you need to ask about this
is, how does it fit into the pattern of behavior by the
President? Because what you're really doing is you're drawing
inferences here. This is about circumstantial evidence as well
as direct evidence. That is, you're trying to infer did the
President ask for a political favor, and I think this record
supports the inference that he did.
Ms. Jackson Lee. What comparisons, Professor Karlan, can we
make between kings that the Framers were afraid of and the
President's conduct today?
Ms. Karlan. So kings could do no wrong because the king's
word was law. And contrary to what President Trump has said,
Article II does not give him the power to do anything he wants.
And I'll just give you one example that shows you the
difference between him and a king, which is, the Constitution
says there can be no titles of nobility. So while the President
can name his son Barron, he can't make him a baron.
Ms. Jackson Lee. Thank you.
The Founding Father George Mason asks, Shall any man be
above justice? And Alexander Hamilton wrote that high crimes
and misdemeanors mean the abuse of violation of some public
trust.
As we move quickly, Professor Feldman, you have previously
testified that the President has abused his power. Is that
correct?
Mr. Feldman. Yes, ma'am.
Ms. Jackson Lee. What do you think is the most compelling
evidence in this impeachment inquiry that would lead you to
that?
Mr. Feldman. The phone call itself of July 25 is
extraordinarily clear, to my mind, in that we hear the
President asking for a favor that's clearly of personal
benefit, rather than acting on behalf of the interest of the
Nation. And then further from that, further down the road, we
have more evidence which tends to give the context and to
support the explanation for what happened.
Ms. Jackson Lee. Professor Karlan, how does such abuse
affect our democratic systems?
Ms. Karlan. Having foreign interference in our election
means that we are less free. It is less we the people who are
determining who's the next winner than it is a foreign
government.
Ms. Jackson Lee. I think it is fair to say that the
President's actions are unprecedented. But what also strikes me
is how many Republicans and Democrats believe that his conduct
was wrong. Let's listen to the colonel.
[Video shown.]
Ms. Jackson Lee. Professor Feldman, in light of the fact
that the President asked for an investigation and then only
when he was caught released the military aid, is there still a
need for impeachment?
Mr. Feldman. Yes, ma'am. Impeachment is complete when the
President abuses his office and he abuses his office by
attempting to abuse his office. There's no distinction there
between trying to do it and succeeding in doing it, and that's
especially true if you only stop because you got caught.
Ms. Jackson Lee. Over 70 percent of the American people
believe, as I said, what the President did was wrong. We have a
solemn responsibility to address that, and as well, our
fidelity to our oath and our duty.
I'm reminded of the men and women who serve in the United
States military, and I'm reminded of my three uncles who served
in World War II. I can't imagine them being on the battlefield
needing arms and food, and the general says, do me a favor. We
know that general would not say, do me a favor. And so in this
instance, the American people deserve unfettered leadership,
and it is our duty to fairly assess the facts and the
Constitution.
I yield back my time.
Chairman Nadler. The gentlelady yields back.
Mr. Chabot is recognized.
Mr. Chabot. Thank you, Mr. Chairman.
It's pretty clear to me that no matter what questions we
ask these four witnesses here today and no matter what their
answers are, that most, if not all, of the Democrats on this
committee, are going to vote to impeach President Trump. That's
what their hardcore Trump-hating base wants, and they've wanted
that since the President was elected 3 years ago.
In fact, when Democrats took over the House, one of the
first things that they did was introduce Articles of
Impeachment against President Trump, and that was way before
President Trump and the Ukrainian President Zelensky ever had
their famous phone call, whether it was perfect or not.
Now, today, we are undertaking a largely academic exercise
instead of hearing from fact witnesses, like Adam Schiff or
Hunter Biden, but we are not being permitted to call those
witnesses. It would seem that since Schiff, for example, misled
the American people on multiple occasions, common sense and
basic fairness would call for Schiff to be questioned about
those things, but we can't.
Mr. Chairman, back in 1998, when another President, Bill
Clinton, was being considered for impeachment, you said, and I
quote: ``We must not overturn an election and impeach a
President without an overwhelming consensus of the American
people and the representatives in Congress.'' You also said,
quote: ``There must never be a narrowly voted impeachment or an
impeachment substantially supported by one of the major
political parties and largely opposed by the other.'' You said
such an impeachment would lack legitimacy, would produce
divisiveness and bitterness in our politics for years to come,
and will call into question the very legitimacy of our
political institutions. That's what you said back then, Mr.
Chairman.
Well, what you said should never happen, that we should
never do is exactly what you're doing now, moving forward
without a consensus and impeachment by one major party that's
opposed by the other. And it's almost certain that it's going
to result in the very divisiveness and bitterness that you so
accurately warned us about back then.
Mr. Chairman, a couple more quotes from a very wise Jerry
Nadler from about two decades ago. Quote: ``The last thing you
want, it's almost illegitimate, is to have a party-line
impeachment. You shouldn't impeach the President unless it's a
broad consensus of the American people.'' Those were wise
words, Mr. Chairman, but you're not following them today.
And finally, again your words back then: ``The issue in a
potential impeachment is whether to overturn the results of a
national election, the free expression of the popular will of
the American people. That is an enormous responsibility and an
extraordinary power. It is not one we should exercise lightly.
It is certainly not one which should be exercised in a manner
which either is or would be perceived by the American people to
be unfair or partisan,'' unquote.
Again, Mr. Chairman, those things that you warned against
then are exactly what you and your Democratic colleagues are
doing now. You're about to move forward with a totally party-
line impeachment. That is clearly not a broad consensus of the
American people. You're overturning the result of a national
election, and there's no doubt that it will be perceived by at
least half of the American people as an unfair and partisan
effort.
You seem bound and determined to move forward with this
impeachment, and the American people deserve better. I get it,
Democrats on this committee don't like this President. They
don't like his policies. They don't like him as a person. They
hate his tweets. They don't like the fact that the Mueller
investigation was a flop. So now you're going to impeach him.
Well, I got news for you. You may be able to twist enough
arms in the House to impeach the President, but that effort's
going to die in the Senate. The President's going to serve out
his term in office, and in all likelihood be reelected to a
second term probably with the help of this very impeachment
charade that we're going through now.
And while you're wasting so much of Congress' time and the
American people's money on this impeachment, there are so many
other important things that are going undone. Within this
committee's own jurisdiction, we should be addressing the
opioid epidemic. We could be working together to find a
solution to our immigration and asylum challenges on our
southern border. We could be protecting Americans from having
their intellectual property and jobs stolen by Chinese
companies, and we could be enhancing election security, just to
name a few things.
And Congress as a whole could be working on rebuilding our
crumbling infrastructure, providing additional tax relief to
the Nation's middle-class families and providing additional
security to our people here at home and abroad. Instead, here
we are spinning our wheels once again on impeachment. What a
waste. The American people deserve so much better.
I yield back.
Chairman Nadler. The gentleman yields back.
Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair.
I take no pleasure in the fact that we're here today. As a
patriot who loves America, it pains me that the circumstances
forced us to undertake this grave and solemn obligation.
Nonetheless, based simply on the publicly available evidence,
it appears that President Trump pressured a foreign government
to interfere in our elections by investigating his perceived
chief political opponent.
Today, we're here to uphold our oaths to defend the
Constitution of the United States by furthering our
understanding whether the President's conduct is impeachable.
It is entirely appropriate that we're examining our Nation's
history as it relates to Presidential impeachment. The Framers
of the Constitution legitimately feared for an interference in
our Nation's sovereignty, and they wanted to ensure that there
would be a check and balance on the executive. We sit here with
a duty to the Founders to fulfill their wisdom in being a check
on the executive. We, the People's House, are that check.
Under our Constitution, the House can impeach a President
for treason, bribery, or other high crimes and misdemeanors.
Professor Feldman, you've discussed high crimes and
misdemeanors and the fact that the high refers to both crimes
and misdemeanors. Can you just give us a little bit of a
summary of what high crimes and misdemeanors are and how
they're distinct from what Professor Turley said they were?
Mr. Feldman. Yes, sir. High crimes and misdemeanors are
actions of the President in office where he uses his office to
advance his personal interests potentially for personal gain,
potentially to corrupt the electoral process, and potentially
as well against the national security interests of the United
States.
I would add, sir, that the word ``high'' modifies both
crimes and misdemeanors. The Framers' world knew of both high
crimes and high misdemeanors. And I believe that the definition
that was posted earlier of misdemeanor was not the definition
of high misdemeanor, which is a specific term understood by the
Framers and discussed in the constitutional convention, but
only of the word ``misdemeanor.''
And that's an easy mistake to make, but the truth is that
high misdemeanors were their own category of abuses of office,
and those are the things that are impeachable.
Mr. Cohen. Thank you, Professor.
Professors Feldman, Karlan, and Gerhardt, you've all
testified the President's conduct here implicates three
categories of high crimes and misdemeanors: abuse of power,
betrayal of the national interest, and corruption of elections.
Is that right, Professor Karlan?
Ms. Karlan. Yes, it is.
Mr. Cohen. And to Professor Feldman and Professor Gerhardt,
do you agree?
Mr. Gerhardt. Yes.
Mr. Feldman. Yes, sir.
Mr. Cohen. Professor Karlan, you've stated that the essence
of an impeachable offense is the President's decision to
sacrifice the national interest for his own private ends.
Professor Feldman and Gerhardt, do you all also agree with
that?
Mr. Feldman. Yes, sir.
Mr. Gerhardt. Yes.
Mr. Cohen. Based on the evidence you've seen, Professors
Feldman, Karlan, and Gerhardt, has President Trump sacrificed
the country's interest in favor of his own? Professor Karlan.
Ms. Karlan. Yes, he has.
Mr. Cohen. And is there a particular piece of evidence that
most illuminates that?
Ms. Karlan. I think what illuminates that most for me is
the statement by Ambassador Sondland that he wanted simply the
announcement of an investigation, and several other people said
exactly the same thing. There's testimony by Ambassador Volker
to this extent as well that what he wanted was simply public
information to damage Joe Biden. He didn't care whether at the
end of the day Joe Biden was found guilty or exonerated.
Mr. Cohen. And, Professor Feldman, do you agree and do you
have a different or the same illuminating fact----
Mr. Feldman. My emphasis would be on the fact that the
President held up aid to an ally that's fighting a war in
direct contravention of the unanimous recommendation of the
national security community. That to me seems to have placed
his own interests in personal advantage ahead of the interests
of the Nation.
Mr. Cohen. And a bill passed by Congress, bipartisan?
Mr. Feldman. Yes, sir.
Mr. Cohen. Professor Gerhardt.
Mr. Gerhardt. I agree with what my colleagues have said. I
would add that I am very concerned about the President's
obstruction of Congress, obstruction of this inquiry, refusal
to comply with a number of subpoenas, ordering many high-level
officials in the government not to comply with subpoenas, and
asking and ordering the entire executive branch not to
cooperate with Congress.
It's useful to remember, the Constitution says the House
has the sole power to impeach. The Constitution only uses the
word ``sole'' twice; once with reference to the House in this
area, once with reference to the Senate with respect to
impeachment trials. Sole means sole. It means only. And this is
your decision.
Mr. Cohen. And let me get Professor Turley into this.
Professor Turley, you're a self-described, self-anointed
defender of Article I Congress guy. But you justify a position
that says legally issued subpoenas by Congress enforcing its
powers don't have to be complied with. It seems in this
circumstance you're an Article II executive guy. And you're
talking about the Johnson impeachment as not very useful. That
was maladministration. This is a criminal act.
Thank you, Professors, for helping us understand high
crimes and misdemeanors. We the People's Representatives in the
People's House are heirs and custodians that Founders
envisioned this country where the people are sovereign. We have
a high responsibility and charged with the sole power to uphold
our Constitution and defend our democracy, and we shall do
that.
Chairman Nadler. The gentleman's time is expired.
Mr. Gohmert.
Mr. Gohmert. Thank you.
I'm afraid this hearing is indicative of the indecency to
which we've come when, instead of the committee of jurisdiction
bringing in fact witnesses to get to the bottom of what
happened and not even having time to review the report, which
as Professor Turley indicated is wafer thin when compared to
the 36 boxes of documents that were delivered to the last
impeachment group, but then to start this hearing with the
chairman of the committee saying that the facts are undisputed;
the only thing that is disputed more than the facts in this
case is the statement that the facts are undisputed.
They are absolutely disputed, and the evidence is a bunch
of hearsay on hearsay that if anybody here had tried cases
before of enough magnitude, you would know you can't rely on
hearsay on hearsay. But we have experts who know better than
the accumulated experience of the ages.
So here we are. And I would submit we need some factual
witnesses. We do not need to receive a report that we don't
have a chance to read before this hearing. We need a chance to
bring in actual fact witnesses, and there are a couple I can
name that are critical to us getting to the bottom. They work
for the National Security Council, Abigail Grace, Sean Misko.
They were involved in the U.S.-Ukraine affairs, and they worked
with Vice President Biden on different matters involving
Ukraine. They worked with Brennan and Masters. They have
absolutely critical information about certain Ukrainians'
involvement in our U.S. election. Their relationships with the
witnesses who went before the Intel Committee and others
involved in these allegations make them the most critical
witnesses in this entire investigation.
And the records, including their emails, their text
messages, their flash drives, their computers, have information
that will bring this effort to remove the President to a
screeching halt.
So we have an article here from October 11, Kerry Picket,
points out that House Intelligence Committee Chairman Adam
Schiff recruited two former National Security Council aides who
worked alongside the CIA whistleblower at the NSC during the
Obama and Trump administrations. Abigail Grace, who worked at
the NSC until 2018, was hired in February, while Sean Misko, an
NSC aide until 2017, joined Schiff's committee in August, the
same month the whistleblower submitted his complaint.
And it goes on to point out that Grace was hired to help
Schiff's committee investigate the Trump White House. That
month, Trump accused Schiff of stealing people who were working
at the White House. And Chairman Schiff said, if the
President's worried about our hiring any former administration
people, maybe he should work on being a better employer. No, he
should have fired everybody, just like Bill Clinton did, all
the U.S. attorneys on the same day. That would have saved us a
lot of what's gone on here.
So anyway, we need those two witnesses. They're critical.
And then we also need someone who was a CIA detailee to the
Ukraine NSC desk. State Department FOIA shows that he was at an
Italy State luncheon. There's Italy ramifications in the last
elections. He speaks Arabic and Russian, reported directly to
Charles Kupchan, who is a friend of the Clinton's aide, Sid
Blumenthal. He did policy work for the Ukraine corruption.
Close, continuous contact with the FBI, State, Ukrainian
officials, had a collateral duty to support Vice President
Biden, and Biden was Obama's point man on Ukraine. He was
associated with DNC operative Ally Chalupa, who we also need,
met with her November 9, 2015, with Ukrainian delegation. And
there is all kinds of reasons we need these three witnesses.
And I would ask, pursuant to section 4, House Resolution
660, ask our chairman to---- I mean our ranking member to
submit the request for these three witnesses, because we're not
having a factual hearing until we have these people that are at
the bottom of every fact of this investigation.
I yield back.
Chairman Nadler. The gentleman's time is expired.
Mr. Gohmert. Thanks for bringing down the gavel hard. That
was nice.
Chairman Nadler. The gentleman yields back.
Mr. Johnson.
Mr. Johnson of Georgia. Thank you, Mr. Chairman.
The President has regularly and recently solicited foreign
interference in our upcoming elections. Professor Turley warns
that this is an impulse buy moment and suggests that the House
should pause.
Professor Karlan, do you agree with Professor Turley?
Ms. Karlan. No. If you conclude that, as I think the
evidence to this point shows, that the President is soliciting
foreign involvement in our election, you need to act now to
prevent foreign interference in the next election like the one
we had in the past.
Mr. Johnson of Georgia. Thank you.
Professor Karlan, in 30 seconds or less, tell us why you
believe the President's misconduct was an abuse of power so
egregious that it merits the drastic remedy of impeachment.
Ms. Karlan. Because he invited the Russians, who are our
longtime adversaries, into the process, the last time around,
because he has invited the Ukrainians into the process, and
because he's suggested he would like the Chinese to come into
the process as well.
Mr. Johnson of Georgia. Thank you very much.
One of the Framers of our Constitution, Edmund Randolph,
who at one time was mayor of Williamsburg, Virginia, warned us
that, quote, ``The executive will have great opportunities of
abusing his power,'' end quote.
Professor Feldman, people like Mayor Randolph rebelled
because of the tyranny of a king. Why were the Framers so
careful to avoid the potential for a President to become so
tyrannical and abusive, and what did they do to protect against
it?
Mr. Feldman. The Framers believed very strongly that the
people were the king, the people were sovereign, and that meant
that the President worked for somebody. He worked for the
people. They knew that a President who couldn't be checked, who
could not be supervised by his own Justice Department and who
could not be supervised by Congress and could not be impeached
would effectively be above the law and then would use his power
to get himself reelected, and that's why they created the
impeachment remedy.
Mr. Johnson of Georgia. Thank you.
Professor Feldman, I now want to discuss how the Framers'
concerns about abuse of power relate to President Trump's
misconduct. On July 25, President Trump said to President
Zelensky, quote, I would like you to do us a favor, though.
Professor Feldman, when President Trump made use of the
words ``favor, though,'' do you believe that the President was
benignly asking for a favor, and how is the answer to that
question relevant to whether the President abused his power?
Mr. Feldman. It's relevant, sir, because there's nothing
wrong with someone asking for a favor in the interest of the
United States of America. The problem is for the President to
use his office to solicit or demand a favor for his personal
benefit.
And the evidence strongly suggests that given the power of
the President and given the incentives that the President
created for Ukraine to comply with his request, that the
President was seeking to serve his own personal benefit and his
own personal interest. That's the definition of corruption
under the Constitution.
Mr. Johnson of Georgia. Other witnesses have also testified
that it was their impression that when President Trump said, I
would like you to do us a favor, though, that he was actually
making a demand and not a request.
Professor Feldman, how does Lieutenant Colonel Vindman's
testimony that the President's statement was a demand because
of the power disparity between the two countries relate back to
our Framers' concerns about the President's abuse of power?
Mr. Feldman. Lieutenant Colonel Vindman's observations
states very clearly that you have to understand that the
President of the United States has so much more power than the
President of Ukraine, that when the President uses the word
``favor,'' the reality is that he's applying tremendous
pressure, the pressure of the power of the United States. And
that relates to the constitutional abuse of office.
If someone other than the President of the United States
asked the President of Ukraine to do a favor, the President of
the Ukraine could say no. When the President of the United
States uses the Office of the Presidency to ask for a favor,
there's simply no way for the President of Ukraine to refuse.
Mr. Johnson of Georgia. Thank you.
We've also heard testimony that the President withheld a
White House meeting and military aid in order to further
pressure Ukraine to announce investigations of Vice President
Biden and the 2016 election.
Professor Karlan, is that why your testimony concluded that
the President abused his power?
Ms. Karlan. I thought the President abused his power by
asking for a criminal investigation of a United States citizen
for political ends, regardless of everything else. That's
just--it's not icing on the cake. It's what you would call an
aggravating circumstance that there was need here.
Mr. Johnson of Georgia. All right. Thank you.
A President holding an American ally over a barrel to
extract personal favors is deeply troubling. This is not an
impulse buy moment. It's a break-the-glass moment, and
impeachment is the only appropriate remedy.
And with that, I will yield back.
Chairman Nadler. The gentleman yields back.
Mr. Jordan.
Mr. Jordan. Thank you, Mr. Chairman.
Before Speaker Pelosi announced the impeachment inquiry 10
weeks ago, on September 24th, before the call between President
Trump and President Zelensky on July 25, before the Mueller
hearing in front of this committee on July 24, before all that,
16 of them had already voted to move forward on impeachment.
Sixteen Democrats on the Judiciary Committee had already
voted to move forward on impeachment, yet today we're talking
about whether the positions they've already taken are
constitutional? Seems a little backward to me. I mean, we can't
get agreement. I mean, we've got four Democrats--or four people
who voted for Clinton, and they can't agree. Yet today we're
talking about the Constitution.
Now, Professor Turley, you've been great today, but I think
you were wrong on one thing: You said this is a fast
impeachment. I would argue it's not a fast impeachment; it's a
predetermined impeachment, predetermined impeachment done in
the most unfair partisan fashion we have ever seen.
No subpoena power for Republicans. Depositions done in
secret in the bunker in the basement of the Capitol. Seventeen
people come in for those depositions. No one can be in there
except a handful of folks that Adam Schiff allowed. In those
depositions, Chairman Schiff prevented witnesses from answering
Republican questions. Every Democrat question got answered, not
every Republican question.
Democrats denied Republicans the witnesses we wanted in the
open hearings that took place 3 weeks ago. And, of course,
Democrats promised us the whistleblower would testify and then
changed their mind. And they changed their mind, why? Because
the whole world discovered that Adam Schiff's staff had talked
to the whistleblower, coordinated with the whistleblower, the
whistleblower with no firsthand knowledge, bias against the
President who worked with Joe Biden, whose lawyer in January of
2017 said the impeachment process starts then.
That's the unfair process we've been through. And the
reason it's been unfair--let me just cut to the chase--the
reason it's been unfair is because the facts aren't on their
side. The facts are on the President's side. Four key facts
will not change, have not changed, will never change. We have
the transcript. There was no quid pro quo in the transcript.
The two guys on the call, President Trump and President
Zelensky, both said no pressure, no pushing, no quid pro quo.
The Ukrainians--third--didn't know that the aid was held up at
the time of the phone call; and, fourth, and most important,
the Ukrainians never started, never promised to start, and
never announced an investigation in the time that the aid was
paused, never once.
But you know what did happen in those 55 days that the aid
was paused? There were five key meetings between President
Zelensky and senior officials in our government, five key
meetings. We had the call on July 25th. The very next day, July
26th, we had Ambassador Volker, Taylor, and Sondland meet with
President Zelensky in Kyiv.
You then had Ambassador Bolton end of August meet with
President Zelensky. We then had the Vice President meet with
President Zelensky on September 1st. And we had two Senators,
Republican and, more importantly, Democratic Senator Murphy
with Republican Senator Johnson meet with President Zelensky on
September 5th.
None of those five meetings--none of those five meetings--
was aid ever discussed in exchange for an announcement of an
investigation into anybody, not one of them. And you would
think the last two, after the Ukrainians did know the aid was
being held, you would think it would come up then, particularly
the one where he got Senator Murphy, the Democrat, there
talking about it. Never came up.
The facts are on the President's side. But we've got an
unfair process because they don't have the facts. We've got an
unfair process, most importantly--and this gets to something
else you said, Mr. Turley, and this is scary how mad the
country--that was so well said. This is scary. The Democrats
have never accepted the will of the American people.
To Mr. Turley's point, 17 days ago, 17 days ago the Speaker
of the United States House of Representatives called the
President of the United States an imposter. The guy 63 million
Americans voted for, who won an Electoral College landslide,
the Speaker of the United States House of Representatives
called that individual an imposter. That is not healthy for our
country. This is not healthy.
The facts are the facts. They are on the President's side.
That's what we need to focus on, not some constitutional
hearing at the end of the process when you guys have already
determined where you're going to go.
With that, I yield back.
Chairman Nadler. The gentleman yields back.
Mr. Deutch.
Mr. Deutch. Thank you, Mr. Chairman.
Mr. Chairman, this month, we commemorate the 75th
anniversary of the Battle of the Bulge. My late father, Bernard
Deutch, then Staff Sergeant Bernard Deutch, received a Purple
Heart fighting in the frigid Ardennes. He gave blood among tens
of thousands of Americans who suffered--who were casualties.
They served under officers and a Commander in Chief who were
not fighting a war for their own personal benefit.
They put country first. They made the same solemn promise
that Members of Congress and the President of the United States
make: to always put national interests above their own personal
interest. The evidence shows the President broke that promise.
The Constitution gives the President enormous power, but it
also imposes a remedy--impeachment--when those powers are
abused.
In July, President Trump said, and I quote, I have an
Article II where I have the right to do whatever I want as
President, closed quote. Professor Feldman, the President has
broad powers under the Constitution, including in foreign
policy. Isn't that right?
Mr. Feldman. Yes, sir.
Mr. Deutch. And do those powers mean that the President can
do, as he said, whatever he wants as President? Can he abuse
the powers that the Constitution gives him?
Mr. Feldman. He may not. If the President uses the powers
that he's given for personal gain or to corrupt an election or
against the national security interest of the United States, he
may be impeached for a high crime and misdemeanor.
Mr. Deutch. Is using his power to pressure Ukraine to
interfere in U.S. elections an abuse of that power?
Mr. Feldman. Yes, sir.
Mr. Deutch. Professor Gerhardt, how would the Framers of
the Constitution have viewed a President asking for election
interference from a foreign leader?
Mr. Gerhardt. It's always--it's, you know, practically
impossible to know exactly what the Framers would think, but
it's not hard to imagine how the Constitution deals with it.
That's their legacy to us. And under the Constitution, it's
plainly an abuse of power. It's a rather horrifying abuse of
power.
Mr. Deutch. Professor Karlan, we've heard witnesses over
the past several weeks testify about their concerns when the
President used his foreign policy powers for political gain.
Lieutenant Colonel Vindman was shocked. He couldn't believe
what he heard on the phone call. NSC Adviser Hill realized that
a political errand was diverging from efforts to protect our
national security policy. And Ambassador Taylor thought it was
crazy to withhold security assistance for help on a political
campaign.
Professor Karlan, these concerns aren't mere differences
over policy, are they?
Ms. Karlan. No. They go to the foundation, the very
foundation of our democracy.
Mr. Deutch. And offering to exchange a White House meeting
and hundreds of millions of dollars in security assistance for
help with his reelection, that can't be part of our Nation's
foreign policy, can it?
Ms. Karlan. No. It's the essence of doing something for
personal reasons rather than for political reasons. And if I
could just say one thing about this very briefly, which is
maybe when he was first running for President--he had never
been anything other than a reality TV show character, you know,
that was his public life--maybe then he could think, ``Russia,
if you're listening'' is an okay thing to do. But by the time
he asked the Ukraine, ``Ukraine, if you're listening, could you
help me out with my reelection,'' he has to have known that
that was not something consistent with his oath of office.
Mr. Deutch. Mr. Chairman, our Founders granted the
President of the United States enormous powers, but at the same
time, what we've been reminded of today, they worried that
these powers could be abused by a corrupt President. The
evidence of abuse of power in this inquiry proved that our
Founders were right to be worried.
Yes, yes, the President has the power to direct America's
foreign policy, but, no, he cannot use that power to cheat in
our elections. Remember, and I ask all of my colleagues to
remember, the Constitution grants the President his power
through the American people. The President's source of power is
a democratic election. It is the American people, the voters
who trusted him to look out for them. We trusted him to look
out for the country.
But, instead, President Trump looked out for himself and
helping himself get reelected. He abused the power that we
trusted him with for personal and political gain. The founders
worried about just this type of abuse of power, and they
provided one way, one way for Congress to respond, and that's
the power of impeachment.
I yield back.
Chairman Nadler. The gentleman yields back.
Mr. Buck.
Mr. Buck. Thank you, Mr. Chairman.
Professor Turley, I want to direct these first few
questions to you. The other three witnesses have identified
this amorphous standard for impeaching a President. They've
said that if a President abuses his power for personal or
political gain, it's impeachable conduct. Do you agree with me?
Mr. Turley. Not the way it's been stated. In fact, there's
so many different standards----
Mr. Buck. I've got a long ways to go here.
Mr. Turley. Well, there's been so many different standards,
one of them was attempting to abuse office. I'm not even sure
how to recognize that, let alone define it.
Mr. Buck. So let me go with a few examples and see if you
agree with me. Lyndon Johnson directed the Central Intelligence
Agency to place a spy in Barry Goldwater's campaign. That spy
got advanced copies of speeches and other strategy, delivered
that to the Johnson campaign. Would that be impeachable conduct
according to the other panelists?
Mr. Turley. Well, it sweeps very broadly, so I assume so.
Mr. Buck. How about when President Johnson put a wiretap on
Goldwater's campaign plane? Would that be for political
benefit?
Mr. Turley. Well, I can't exclude anything under that
definition.
Mr. Buck. Okay. Well, I'm going to go with a few other
Presidents. We'll see where we go. Congressman Deutch just
informed us that FDR put country first. Now, Franklin Delano
Roosevelt when he was President directed the IRS to conduct
audits of his political enemies, namely Huey Long, William
Randolph Hearst, Hamilton Fish, Father Coughlin. Would that be
an abuse of power for political benefit according to the other
panelists? Would that be impeachable conduct?
Mr. Turley. I think it all would be subsumed into it.
Mr. Buck. How about when President Kennedy directed his
brother Robert Kennedy to deport one of his mistresses as an
East German spy? Would that qualify as impeachable conduct?
Mr. Turley. Once again, I can't exclude it.
Mr. Buck. And how about when we directed the FBI to use
wiretaps on congressional staffers who opposed him politically?
Would that be impeachable conduct?
Mr. Turley. It would seem to be falling within it.
Mr. Buck. And let's go to Barack Obama. When Barack Obama
directed or made a finding that the Senate was in recess and
appointed people to the National Labor Relations Board and lost
nine to zero, Ruth Bader Ginsburg voted against the President
on this issue, would that be an abuse of power?
Mr. Turley. I'm afraid you'd have to direct it to others,
but I don't see any exclusions under their definition.
Mr. Buck. Okay. And how about when the President directed
his National Security Advisor and the Secretary of State to lie
to the American people about whether the Ambassador to Libya
was murdered as a result of a video or was murdered as a result
of a terrorist act? Would that be an abuse of power for a
political benefit, 17 days before the next election?
Mr. Turley. Well, not according to my definition, but the
others will have to respond to their own.
Mr. Buck. Well, you've heard their definition. You can
apply those facts to their definition.
Mr. Turley. I have a hard time excluding anything out of--
--
Mr. Buck. How about when Abraham Lincoln arrested
legislators in Maryland so that they wouldn't convene to secede
from the Union? And Virginia already had seceded, so it would
place Washington, D.C., the Nation's capital, in the middle of
the rebellion. Would that have been an abuse of power for
political benefit?
Mr. Turley. Well, it could be under that definition.
Mr. Buck. And you mentioned George Washington a little
while ago as perhaps having met the standard of impeachment for
your other panelists. In fact, let me ask you something,
Professor Turley. Can you name a single President in the
history of the United States, save President Harrison who died
32 days after his inauguration, that would not have met the
standard of impeachment for our friends here?
Mr. Turley. I would hope to God James Madison would escape;
otherwise, a lifetime of academic work would be shredded. But,
once again, I can't exclude many of these acts.
Mr. Buck. Isn't what you and I and many others are afraid
of is that the standard that your friends to the right of you--
and not politically but to the right of you sitting in there--
that your friends have decided that the bar is so low that when
we have a Democrat President in office and a Republican House
and a Republican Senate, we're going to be going through this
whole scenario again in a way that really puts the country at
risk?
Mr. Turley. Well, when your graphic says in your ABCs that
your B is betrayal of national interest, I would simply ask, do
you really want that to be your standard?
Mr. Buck. Now, isn't the difference, Professor Turley, that
some people live in an ivory tower and some people live in a
swamp? And those of us that are in the swamp are doing our very
best for the American people, but it's not pretty.
Mr. Turley. Actually, I live in an ivory tower in a swamp,
because I'm at GW, but--and it's not so bad.
Mr. Buck. I yield back.
Chairman Nadler. The gentleman yields back.
Ms. Bass.
Ms. Bass. Thank you very much.
And I want to thank the witnesses, and I don't believe the
people's House is a swamp.
President Nixon was impeached for abuse of power because
his conduct was, quote, undertaken for his personal political
advantage and not in furtherance of any valid national policy
objective. Professor Gerhardt, why was it significant that
President Nixon acted for his personal political advantage and
not in furtherance of any valid national policy objective?
Mr. Turley. It's primarily significant because, in acting
for his own personal benefit and not for the benefit of the
country, he has crossed a line. The line here is very clear,
and it becomes abuse of power when somebody is using the
special authorities of their office for their own personal
benefit and not the benefit of the country.
Ms. Bass. So can the same be said of President Trump?
Mr. Gerhardt. It could be, yes. Yes.
Ms. Bass. Well, thank you. You know, I'm struck by the
parallels because one of the things that Nixon did was he
launched tax investigations of his political opponents. Here
the evidence shows Trump tried to launch a criminal
investigation of his political opponent by a foreign
government.
We have heard evidence suggesting that President Trump did
this for his own personal gain and not for any national policy
interest. Although President Trump claims that he withheld the
aid because of concerns about corruption, I do believe that we
have example of the evidence of the truth.
[Video shown.]
Ms. Bass. Professor Feldman, what would the Framers have
thought of a President who only cares about the, quote, big
stuff that benefits him?
Mr. Feldman. The Framers were extremely worried about a
President who served only his own interests or the interests of
foreign powers. That was their most serious concern when they
designed the remedy of impeachment.
Ms. Bass. So the evidence also suggests that President
Trump didn't even care if the investigation actually happened.
What he really cared about was the public announcement of the
investigation.
So, Professor Karlan, how do we analyze these facts in the
context of abuse of power?
Ms. Karlan. Well, I think that to have a President ask for
the investigation of his political opponents is an archetype of
the abuse of power. And, you know, Mr. Buck mentioned past
examples of this. And to say that those weren't impeachable, I
think, is a big mistake. If a President wiretaps his opponents,
that's a Federal crime now. I don't know whether, before the
Wiretap Act of 1968, it was, but if a President wiretapped his
opponents today, that would be impeachable conduct.
Ms. Bass. I also serve on the Foreign Affairs Committee,
and I understand how significant it is to foreign leaders to
meet with our Presidents. To attend a meeting in the Oval
Office is very significant. President Zelensky is a newly
elected head of state in a fledgling democracy. His country is
at war with his neighbor. Russia invaded and is occupying his
country's territory. He needed the military resources to defend
his country. He needed the diplomatic recognition of the
American President, and he was prepared to do whatever the
President demanded.
Many years ago, I worked in the Nation's largest trauma
unit as a PA, a physician assistant. I saw people at their
worst in severe pain after accidents or acts of violence.
Patients I took care of were desperate and afraid and had to
wait 5 to 8 hours to be seen.
Can you imagine for 1 minute if I had told my patients,
look, I can move you up in line and take care of your pain, but
I do need a favor from you though. My patients were in pain,
and they were desperate, and they would have agreed to do
anything I asked. This would have been such an abuse of my
position because of the power dynamic. I had the power to
relieve my patients from experiencing pain. It's fundamentally
wrong and, in many cases, illegal for us to use power to take
advantage of those in crisis, especially a President,
especially when lives are at stake.
I yield back.
Chairman Nadler. The gentlelady yields back.
Mr. Ratcliffe.
Mr. Ratcliffe. I thank the chairman.
Professor Turley, I'd like to start where you started
because you said something that I think bears repeating. You
said, I'm not a supporter of President Trump. I voted against
him in 2016, and I have previously voted for Presidents Clinton
and Obama. But despite your political preferences and
persuasions, you reached this conclusion: The current legal
case for impeachment is not just woefully inadequate but in
some respects dangerous as the basis for impeachment of an
American President.
So let me start by commending you for being the kind of
example of what hopefully everyone on this committee will do as
we approach the task that we have of determining whether or not
there were any impeachable offenses here.
One of the problems that you've articulated as leading you
to the conclusion of calling this the, should it proceed, the
shortest impeachment proceeding with the thinnest evidentiary
record and the narrowest grounds ever attempted to impeach a
President, is the fact that there has been this ever changing,
constantly evolving moving target of accusations, if you will.
The July 25 phone call started out as an alleged quid pro
quo and briefly became an extortion scheme, a bribery scheme. I
think it's back to quid pro quo. Now, besides pointing out that
both Speaker Pelosi and Chairman Schiff waited until almost
every witness had been deposed before they even started to use
the term ``bribery,'' I think you've clearly articulated why
you think the definitions that they have used publicly are
flawed if not unconstitutional both in the 18th century or in
the 21st century. But would you agree with me that bribery
under any valid definition requires that a specific quid pro
quo be proven?
Mr. Turley. Yes. More importantly, the Supreme Court is
focused on that issue, as well as, what is the definition of a
quid pro quo?
Mr. Ratcliffe. So, if military aid or security assistance
is part of that quid pro quo, where in the July 25th transcript
does President Trump ever suggest that he intends to withhold
military aid for any reason?
Mr. Turley. He doesn't, and that's the reason we keep on
hearing the words ``circumstantial'' and ``inferential.'' And
that is what is so concerning is those would be appropriate
terms--it's not that you can't have a circumstantial case.
Those would be appropriate terms if these were unknowable
facts. But the problem is that you have so many witnesses that
have not been subpoenaed, so many witnesses that we have not
heard from.
Mr. Ratcliffe. Right. So, if it's not in the transcript,
then it has got to come from witness testimony. And I assume
you've reviewed all the witness testimony, so you know that no
witness has testified that they either heard President Trump or
were told by President Trump to withhold military aid for any
reason, correct?
Mr. Turley. Correct.
Mr. Ratcliffe. So let me turn to the issue of obstruction
of justice quickly. I think you assumed, as I did, that when
the Democrats have been talking about obstruction, it was
specifically related to the Ukraine issue. And I know you've
talked about that a lot today. You've clearly stated that you
think that President Trump had no corrupt intent, on page 39 of
your report.
You said something else I think that bears repeating today.
You were highlighting the fact that the Democrats appear to be
taking the position that if a President seeks judicial review
over executive branch testimony or documents subpoenaed by
Congress that, rather than letting the courts be the arbiter,
Congress can simply impeach the President for obstruction based
on that. Did I hear you say that if we were to proceed on that
basis, that that would be an abuse of power?
Mr. Turley. I did. And let me be very clear about this. I
don't disagree with my colleagues that nothing in the
Constitution says you have to go to a court or wait for a
court. That's not what I'm saying. What I'm saying is that, if
you want a well based, a legitimate impeachment case to set
this abbreviated schedule, demand documents, and then impeach
because they haven't been turned over when they go to a court,
when the President goes to a court, I think that is an abuse of
power.
That's not what happened in Nixon, and, in fact, the
ultimate decision in Nixon was that there are legitimate
executive privilege claims that could be raised, and some of
them deal with the type of aides involved in this case, like a
National Security Advisor, like a White House counsel. And so
with the concern here is not that there is--that you can't ever
impeach a President unless you go to court, just that you
shouldn't when you have time to do it.
Mr. Ratcliffe. So, if I were to summarize your testimony,
no bribery, no extortion, no obstruction of justice, no abuse
of power, is that fair?
Mr. Turley. Not on this record.
Chairman Nadler. The gentleman's time is expired.
Mr. Ratcliffe. I yield back.
Chairman Nadler. Mr. Richmond.
Mr. Richmond. Thank you, Mr. Chairman.
And let me just pick up where we left off, and I'm going to
start, Mr. Turley, with your words, and it's from October 23rd,
your opinion piece in The Hill. You said that: As I have said
before, there is no question that the use of public office for
personal gain is an impeachable offense, including the
withholding of military aid in exchange for the investigation
of a political opponent. You just have to prove it happened. If
you can establish intent to use public office for personal
gain, you have a viable impeachable offense.
We've heard today that a President abuses his power when he
uses his official power for his own personal interest rather
than the interest of our country.
I'd like to spend more time on that because I'm really
struck by one of the things that was at stake here, $400
million of taxpayer dollars. President Nixon leveraged the
powers of his office to investigate political rivals, but here
the evidence shows that President Trump also leveraged taxpayer
dollars to get Ukraine to announce sham investigations of
President Trump's political rivals. That taxpayer money was
meant to help Ukraine defend itself and in turn defend United
States interests from Russian aggression.
The money had been appropriated by Congress and certified
by the Department of Defense. Multiple witnesses confirmed that
there was unanimous support for the military aid to Ukraine.
Can we listen to that, please?
[Video shown.]
Mr. Richmond. Professor Feldman, you've stated that the
President's demand to the President of Ukraine constituted an
abuse of power. How does the President's decision to withhold
military aid affect your analysis?
Mr. Feldman. It means that it wasn't just an abuse of power
because the President was serving his own personal interests
but also an abuse of power insofar as the President was putting
American national security interests behind his own personal
interests, so it brought together two important aspects of the
abuse of power, self-gain and undercutting our national
security interests.
Mr. Richmond. The evidence points to President Trump using
military aid for his personal benefit, not for the benefit of
any official U.S. policy. Professor Karlan, how would the
Framers have interpreted that?
Ms. Karlan. Well, I can't speak for the Framers themselves,
obviously. My view is that they would say that the President's
authority to use foreign aid--and they probably couldn't have
imagined we even were giving foreign aid because we were a
tiny, poor country then, so it's a little hard to translate
that.
But what they would have said is a President who doesn't
think first about the security of the United States is not
doing what his oath requires him to do, which was faithfully
execute the laws, here a law appropriating money, and defend
the Constitution of the United States.
Mr. Richmond. Thank you. And let's go back to a segment of
Mr. Turley's quote, that if you can establish intent to use
public office for personal gain, you have a viable impeachable
offense.
Mr. Feldman, do we meet that criteria here?
Mr. Feldman. In my view, the evidence does meet that
criteria, and that's the judgment that you should be making.
Mr. Richmond. Ms. Karlan.
Ms. Karlan. Yes. And one question I would just have for the
minority members of the committee. If you were convinced that
the President held up the aid because he thought it would help
his reelection, would you vote to impeach him? Because I think
that's really the question that everyone on this committee
should be asking. And if they conclude yes, then they should
vote to impeach.
Mr. Richmond. Mr. Gerhardt.
Mr. Gerhardt. Yes, I agree. And one thing I would add is
that much talk has been made here about the term bribery in
court decisions with respect to bribery. It's your job, it's
the House's job to define bribery, not the courts'. You follow
your judgment on that.
Mr. Richmond. I want to thank the witnesses--all of the
witnesses for coming in and testifying today. This is not an
easy decision, it's not a comfortable decision, but it's one
that's necessary. We all take an oath to protect the
Constitution.
Our military, our men and women go and put their lives on
the line for the Constitution, and we have an obligation to
follow the Constitution whether it's convenient or easy. Thank
you, and I yield back the balance.
Chairman Nadler. The gentleman yields back.
Mrs. Roby.
Mrs. Roby. Very quickly. Professor Turley, would you like
to respond?
Mr. Turley. Yes, I would. First of all, what was said in
that column is exactly what I said in my testimony. The problem
is not that abuse of power can never be an impeachable offense,
you just have to prove it and you haven't.
It's not enough to say, I infer this was the purpose. I
infer that this is what was intended, when you're not actually
subpoenaing people with direct knowledge. And, instead, you're
saying we must vote in this rocket docket of an impeachment.
Mrs. Roby. So this leads to my statement that I'd like to
make. Of course, the United States House of Representatives has
initiated impeachment inquiries against the President of the
United States only three times in our a Nation's history prior
to this one. Those impeachment inquiries were done in this
committee, the Judiciary Committee, which has jurisdiction over
impeachment matters.
Here in 2019, under this inquiry, fact witnesses have been
called--fact witness that had been called were in front of the
Intelligence Committee. We have been given no indication that
this committee will conduct substantive hearings with fact
witnesses.
As a Member serving on the Judiciary Committee, I can say
that the process in which we are participating is insufficient,
unprecedented, and grossly inadequate.
Sitting before us is a panel of witnesses containing four
distinguished law professors from some of our country's finest
educational institutions. I do not doubt that each of you are
extremely well-versed in the subject of the Constitutional law.
And, yes, there is precedent for similar panels in the
aforementioned history, but only after specific charges have
been made known, and the underlying facts presented in full,
due to an exhaustive investigation.
However, I don't understand why we are holding this hearing
at this time with these witnesses. My colleagues on the other
side of the aisle have admitted they don't know what Articles
of Impeachment they will consider. How does anyone expect a
panel of law professors to weigh in on the legal grounds for
impeachment charges prior to even knowing what the charges
brought by this committee are going to be.
Some of my Democrat colleagues have stated over and over
that impeachment should be a nonpartisan process, and I agree.
One of my colleagues in the Democratic party stated, and I
quote: Impeachment is so divisive to the country that unless
there is something so compelling and overwhelming and
bipartisan, I don't think we should go down that path because
it divides the country.
My Democratic colleagues have stated numerous times that
they are on a truth seeking and fact finding mission. Another
one of my Democratic colleagues said, and I quote: We have a
responsibility to consider the facts that emerge squarely and
with the best interest of our country, not our party and our
hearts. These types of historic proceedings, regardless of
political beliefs, ought to be about fact finding and truth
seeking, but that is not what this has turned out to be.
Again, no disrespect to these witnesses, but for all I
know, this is the only hearing that we will have, and none of
them are fact witnesses. My colleagues are saying one thing and
doing something completely different. No Member of Congress can
look their constituents in the eye and say this is a
comprehensive, fact finding, truth seeking mission.
Ranking Member Collins and members of the minority on this
committee have written six letters over the past month to
Chairman Nadler asking for procedural fairness for all the
underlying evidence to be transmitted to the Judiciary
Committee. To expand the number of witnesses and have an even
more bipartisan panel here today, and for clarity on today's
impeachment proceedings, since we haven't received evidence to
review.
The minority has yet to receive a response to these
letters. Right here today is another very clear example for all
Americans to truly understand the ongoing lack of transparency
and openness with these proceedings. The witness list for this
hearing was not released until late Monday afternoon. Opening
statements from the witnesses today were not distributed until
late last night. And the Intelligence Committee's finalized
report has yet to be presented to this committee.
You hear from those in the majority that process is a
Republican talking point, when in reality it is an American
talking point. Process is essential to the institution. A
thoughtful meaningful process of this magnitude with such great
implications should be demanded by the American people.
With that, I yield back.
Chairman Nadler. The gentlelady yields back.
Mr. Jeffries.
Mr. Jeffries. I did not serve in the military, but my 81-
year-old father did. He was an Air Force veteran stationed in
Germany during the height of the Cold War in the late 1950s. He
was a teenager from inner city Newark. A stranger in a foreign
land serving on the western side of the Berlin Wall. My dad
proudly wore the uniform because he swore an oath to the
Constitution and believed in American democracy. I believe in
American democracy. We remain the last best hope on Earth. It
is in that spirit that we proceed today.
Professor Karlan, in America we believe in free and fair
elections. Is that correct?
Ms. Karlan. Yes, it is.
Mr. Jeffries. But authoritarian regimes do not. Is that
right?
Ms. Karlan. That's correct.
Mr. Jeffries. Thomas Jefferson once wrote--or John Adams
once wrote to Thomas Jefferson, on December 6, 1787, and
stated: You are apprehensive of foreign interference, intrigue,
influence, so am I. But as often as elections happen, the
danger of foreign influence recurs.
Professor Karlan, how important was the concept of free and
fair elections to the Framers of the Constitution?
Ms. Karlan. Honestly, it was less important to them than
it's become in our Constitution since then. And if you'll
remember, one of the things that turned me into a lawyer was
seeing Barbara Jordan, who was the first female lawyer I had
ever seen in practice, say, on the committee, that, we, the
people didn't include people like her in 1789, but through a
process of amendments we have done that. And so elections are
more important to us today as a Constitutional matter than they
were even to the Framers.
Mr. Jeffries. And it is fair to say that an election cannot
be reasonably characterized as free and fair if it's
manipulated by foreign interference?
Ms. Karlan. That's correct.
Mr. Jeffries. And the Framers of the Constitution were
generally and deeply concerned with the threat of foreign
interference in the domestic affairs of the United States.
True?
Ms. Karlan. Yes.
Mr. Jeffries. And why were they so deeply concerned?
Ms. Karlan. Because foreign nations don't have our
interests at heart, they have their interests at heart.
Mr. Jeffries. And would the Framers find it acceptable for
an American President to pressure a foreign government to help
him win an election?
Ms. Karlan. I think they'd find it unacceptable for a
President to ask a foreign government to help him, whether they
put pressure on him or not.
Mr. Jeffries. Direct evidence shows--direct evidence shows
that on the July 25th phone call, the President uttered five
words: Do us a favor though. He pressured the Ukrainian
government to target an American citizen for political gain,
and at the same time simultaneously withheld $391 million in
military aid.
Now, Ambassador Bill Taylor, West Point graduate, Vietnam
War hero, Republican appointed diplomat, discussed this issue
of military aid. Here is a clip of his testimony.
[Video shown.]
Mr. Jeffries. To the extent the military aid was being
withheld as part of an effort to solicit foreign interference
in the 2020 election, is that behavior impeachable?
Ms. Karlan. Yes, it is. And if I could go back to one of
the words you read. When the President said: Do us a favor, he
was using the royal we there. It wasn't a favor for the United
States. He should have said, do me a favor, because only kings
say us when they mean me.
Mr. Jeffries. Is it correct that an abuse of power that
strikes at the heart of our democracy falls squarely within the
definition of a High Crime and Misdemeanor?
Ms. Karlan. Yes, it does.
Mr. Jeffries. Some of my colleagues have suggested that
impeachment would overturn the will of the people. The American
people expressed their will in November of 2018. The will of
the people elected a new majority. The will of the people
elected a House that would not function as a wholly-owned
subsidiary of this administration. The will of the people
elected a House that understands we are separate and coequal
branch of government. The will of the people elected a House
that understands we have a constitutional responsibility to
serve as a check and balance on an out of control executive
branch.
The President abused his power and must be held
accountable. No one is above the law. America must remain the
last best hope on Earth.
I yield back.
Chairman Nadler. The gentleman yields back.
Mr. Gaetz.
Mr. Gaetz. The will of the American people also elected
Donald Trump to be the President of the United States in the
2016 election, and there's one party that can't seem to get
over it. Now, we understand the fact that in 2018 you took the
House of Representatives, and we haven't spent our time during
your tenure and power trying to remove the Speaker of the
House, trying to delegitimize your ability to govern.
Frankly, we'd love to govern with you. We'd love to pass
USMCA. We'd love to put out a helping hand to our seniors and
lower prescription drug prices. It's the will of the people you
ignore when you continue down this terrible road of
impeachment.
Professor Gerhardt, you gave money to Barack Obama, right?
Mr. Gerhardt. My family did, yes.
Mr. Gaetz. Four times?
Mr. Gerhardt. That sounds about right, yes.
Mr. Gaetz. Mr. Chairman, I have a series of unanimous
consent requests relating to Professor Feldman's work. The
first Noah Feldman Trump's wiretap tweets raise risk of
impeachment----
Chairman Nadler. The gentleman will suspend. Have the----
Mr. Gaetz. My time.
Chairman Nadler. We'll take that time off. Has the
gentleman submitted--have we seen that material?
Mr. Gaetz. We can provide it to you, as is typical for
unanimous----
Chairman Nadler. And we'll consider the unanimous consent
request later after we review the material.
Mr. Gaetz. Very well. Very well. Thank you.
Chairman Nadler. The gentleman may continue.
Mr. Gaetz. Thank you, Mr. Chairman. Mr. Feldman wrote
articles entitled: Trump's wiretap tweets raise risk of
impeachment. He then wrote: Mar-a-Lago ad belongs in
impeachment file. And then Mr. Jake Flannigan wrote in courts,
a Harvard law professor thinks Trump could be impeached over
fake news accusations.
My question, Professor Feldman, is since you seem to
believe that the basis for impeachment is even broader than the
basis that my Democrat colleagues have laid forward, do you
believe you're outside of the political mainstream on the
question of impeachment?
Mr. Feldman. I believe that impeachment is warranted
whenever the President abuses his power for personal benefit or
to corrupt the democratic process.
Mr. Gaetz. Did you write an article entitled It's Hard to
Take Impeachment Seriously Now?
Mr. Feldman. Yes, I did write that article back in May----
Mr. Gaetz. And in that article did you write----
Mr. Feldman. Back in May of 2019, I wrote that article.
Mr. Gaetz. Hold on I'm limited on time, sir. Did you
write----
Mr. Feldman. Are you going to let me answer the question
sir----
Mr. Gaetz. Since the 2018 midterm election House Democrats
have made it painfully clear that discussing impeachment is
primarily or even exclusively a tool to weaken President
Trump's chances in 2020. Did you write those words?
Mr. Feldman. Until this call in July 25th, I was an
impeachment skeptic. The call changed my mind, sir, and for a
good reason----
Mr. Gaetz. Very well. Thank you, I appreciate your
testimony. Professor Karlan, you gave $2,000 bucks--or you gave
$1,000 bucks to Elizabeth Warren?
Ms. Karlan. I believe so.
Mr. Gaetz. You gave $1,200 bucks to Barack Obama.
Ms. Karlan. I have no reason to question that.
Mr. Gaetz. And you gave $2,000 bucks to Hillary Clinton?
Ms. Karlan. That's correct.
Mr. Gaetz. Why so much more for Hillary than the other two?
Ms. Karlan. Because I've been giving a lot of money to
charity recently because of all of the poor people in the
United States.
Mr. Gaetz. Those aren't the only folks you've been giving
to. Now, have you ever been on a podcast called Versus Trump?
Ms. Karlan. I think I was on a live panel that the people
who ran the podcast called Versus Trump----
Mr. Gaetz. On that, do you remember saying the following:
Liberals tend to cluster more. Conservatives, especially very
conservatives people, tend to spread out more, perhaps because
they don't even want to be around themselves. Did you say that?
Ms. Karlan. Yes, I did.
Mr. Gaetz. Do you understand how that reflects contempt on
people who are conservative?
Ms. Karlan. No, what I was talking about there was the
natural tendency, if put the quote in context, the natural
tendency of a compactness requirement to favor a party whose
voters are more spread out. And I do not have contempt for
conservatives----
Mr. Gaetz. Well Professor, hold on. Again, I'm very limited
on time, Professor. And so I just have to say, when you talk
about how liberals want to be around each other and cluster and
conservatives don't want to be around each other, and so they
have spread out. It makes people, you may not see this from
like, you know like, the ivory towers of your law school, but
it makes people in this country----
Ms. Karlan. When the President calls----
Mr. Gaetz. You don't get to interrupt me on this time. Now,
let me also suggest that when you invoke the President's son
name here, when you try to make a little joke out of
referencing Barron Trump, that does not lend credibility to
your argument, it makes you look mean, it makes you look like
you're attacking someone's family, the minor child of the
President of the United States.
So let's see if we could get into the facts. To all of the
witnesses, if you have personal knowledge of a single material
fact in the Schiff report, please raise your hand.
And let the record reflect, no personal knowledge of a
single fact. And you know what, that continues on the tradition
that we saw from Adam Schiff where Ambassador Taylor could not
identify an impeachable offense. Mr. Kent never met with the
President. Fiona Hill, never heard the President reference
anything regarding military aid.
Mr. Hale was unaware of any nefarious activity with aid.
Colonel Vindman even rejected the new Democrat talking point
that bribery was invoked here. Ambassador Volker denied that
there was a quid pro quo. And Mr. Morrison said there was
nothing wrong on the call.
The only direct evidence came from Gordon Sondland, who
spoke to the President of the United States, and the President
said, I want nothing, no quid pro quo. And you know what, if
wiring-tapping of political opponents is an impeachable
offense, I look forward to reading that Inspector General's
report because maybe it's a different President we should be
impeaching.
Chairman Nadler. The gentlemen's time has expired. The
gentleman's time is expired.
Mr. Cicilline.
Mr. Cicilline. Thank you, Mr. Chairman. Professor Feldman,
let me begin by stating the obvious. It is not hearsay when the
President tells the President of Ukraine to investigate his
political adversary, is it?
Mr. Feldman. It is not.
Mr. Cicilline. It is not hearsay when the President then
confesses on national television to doing that, is it?
Mr. Feldman. It is not.
Mr. Cicilline. It is not hearsay when administration
officials testify that they hear the President say he only
cares about the investigations of his political opponent, is
it?
Mr. Feldman. No, that is not hearsay.
Mr. Cicilline. And there's lots of other direct evidence in
this 300-page report from the Intelligence Committee, so let's
dispense with that claim by my Republican colleagues.
Profession Gerhardt, Professor Turley, notwithstanding what
he said today, wrote on August 1, 2014, in a piece called
``Five Myths About Impeachment,'' one of the myths he was
rejecting was that impeachment required a criminal offense, and
he wrote, and I quote: An offense does not have to be
indictable. Serious misconduct or violation of public trust is
enough, end quote.
Was Professor Turley right when he wrote that back in 2014?
Mr. Gerhardt. Yes, I agree with that.
Mr. Cicilline. Now, next, I would move to Professor Karlan.
At the Constitutional Convention, Elbridge Gerry said, and I
quote: Foreign powers will intermeddle in our affairs and spare
no expense to influence them.
And in response, James Madison said, impeachment was needed
because, otherwise, a President, and I quote, might betray his
trust to a foreign power.
Professor Karlan, can you elaborate on why the Framers were
so concerned about foreign interference, how they accounted for
these concerns, and how that relates to the facts before this
committee?
Ms. Karlan. So the reason that the Framers were concerned
about foreign interference, I think, is slightly different than
the reason we are. They were concerned about it because we were
such a weak country in 1789. We were small. We were poor. We
didn't have an established Navy. We didn't have an established
Army.
Today, the concern is a little different, which is that it
will interfere with us making the decisions that are best for
us as Americans.
Mr. Cicilline. Thank you, Professor. There are three known
instances of the President publicly asking a foreign country to
interfere in our elections. First, in 2016, the President
publicly hoped that Russia would hack into the email of a
political opponent, which they subsequently did. Second, based
on the President's own summary of his call with Ukrainian
President Zelensky, we know he asked Ukraine to announce an
investigation of his chief political rival and used aid
appropriated by Congress as leverage in his efforts to achieve
this. And, third, the President then publicly encouraged China
to begin its own investigation.
Professor Feldman, how would it impact our democracy if it
became standard practice for the President of the United States
to ask a foreign government to interfere in our elections?
Mr. Feldman. It would be a disaster for the functioning of
our democracy if our Presidents regularly, as this President
has done, asked foreign governments to interfere in our
electoral process.
Mr. Cicilline. I'd like to end with a powerful warning from
George Washington, who told Americans in his farewell address,
and I quote, to be constantly awake since history and
experience prove that foreign influence is one of the most
baneful foes of republican government, end quote.
The conduct at issue here is egregious and warrants a
commensurate response. The President has openly and repeatedly
solicited foreign interference in our elections; of that there
is no doubt. This matters because inviting foreign meddling
into our elections robs the American people of their sacred
right to elect their own political leaders.
Americans all across this country wait in long lines to
exercise their right to vote and to choose their own leaders.
This right does not belong to foreign government. We fought and
won a revolution over this. Free and fair elections is what
separate us from authoritarians all over the world. As public
servants and Members of the House, we would be negligent in our
duties under the Constitution if we let this blatant abuse of
power go unchecked.
We've heard a lot about hating this President. It's not
about hating this President. It's about a love of country. It's
about honoring the oath that we took to protect and defend the
Constitution of this great country.
And so my final question is to Professor Feldman and to
Professor Karlan. In the face of this evidence, what are the
consequences if this committee and this Congress refuses to
muster the courage to respond to this gross abuse of power that
undermined the national security of the United States, that
undermined the integrity of our elections, and that undermined
the confidence that we have to have in the President to not
abuse the power of his office?
Mr. Feldman. If this committee and this House fail to act,
then you're sending a message to this President and to future
Presidents that it's no longer a problem if they abuse their
power. It's no longer a problem if they invite other countries
to interfere in our elections, and it's no longer a problem if
they put the interests of other countries ahead of ours.
Mr. Cicilline. Ms. Karlan.
Ms. Karlan. I agree with Professor Feldman. And I should
say just one thing, and I apologize for getting a little
overheated a moment ago. But I have a constitutional right
under the First Amendment to give money to candidates. At the
same time, we have a constitutional duty to keep foreigners
from spending money in our elections, and those two things are
two sides of the same coin.
Mr. Cicilline. With that, I yield back, Mr. Chairman.
Chairman Nadler. The gentleman yields back.
Mr. Johnson.
Mr. Johnson of Louisiana. Thank you. I was struck this
morning by the same thing as all my friends and colleagues on
this side of the room. Chairman Nadler actually began this
morning with the outrageous statement that the facts before us
are undisputed. Of course, everyone here knows that that's
simply not true. Every person here, every person watching at
home knows full well that virtually everything here is
disputed, from the fraudulent process and the broken procedure
to the Democrats' unfounded claims.
And the full facts are obviously not before us today. We
have been allowed no fact witnesses here at all. For the first
time ever, this committee, which is the one in Congress that
has the actual jurisdiction over impeachment, is being given no
access to the underlying evidence that Adam Schiff and his
political accomplices claim supports this whole charade. This
is just a shocking denial of due process.
And I want to say to our witnesses: I'm also a
constitutional law attorney, and under normal circumstances, I
really would greatly enjoy an academic discussion with you, a
debate about the contours of Article II, section 4, but that
would be an utter waste of our time today because, as has been
highlighted so many times this morning, this whole production
is a sham and a reckless path to a predetermined political
outcome.
And I want you to know, it's an outcome that was
predetermined by our Democrat colleagues a long time ago. The
truth is House Democrats have been working to impeach President
Donald J. Trump since the day he took his oath of office. Over
the past 3 years, they've introduced four different resolutions
seeking to impeach the President.
Almost exactly 2 years ago, as one of the graphics up here
shows, December 6, 2017, 58 House Democrats voted to begin
impeachment proceedings. Of course, that was almost 20 months
before the famous July 25th phone call with Ukraine's President
Zelensky. And this other graphic up here is smaller, but it's
interesting, too. I think it's important to reiterate for
everybody watching at home that, of our 24 Democrat colleagues
and friends on the other side of the room today, 17 out of 24
have already voted for impeachment.
So, I mean, let's be honest. Let's not pretend that anybody
cares anything about what's being said here today or the actual
evidence or the facts. As Congresswoman Lofgren said, we come
with open minds; that's not happening here. So much for an
impartial jury. Several times this year, leading Democrats have
frankly admitted in various interviews and correspondence that
they really believe this entire strategy is necessary because
why? Because they want to stop the President's reelection.
Even Speaker Pelosi said famously last month that quote:
It's dangerous to allow the American people to evaluate his
performance at the ballot box.
Speaker Pelosi has it exactly backwards. What is dangerous
here is the precedent all this is setting for the future of our
Republic.
I love what Professor Turley testified to this morning. He
said: This is simply not how the impeachment of a President is
done.
His rhetorical question to all of our colleagues on the
other side is still echoing throughout this Chamber. He asked
you to ask yourselves, where will this and where will you stand
next time when this same kind of sham impeachment process is
initiated against a President from your party?
The real shame here today is that everything in Washington
has become bitterly partisan, and this ugly chapter is not
going to help that. It's going to make things really that much
worse. President Turley said earlier that we are now living in
the era that was feared by our Founders, what Hamilton referred
to as a period of agitated passions. I think that says it so
well. This has indeed become an age of rage.
President Washington warned in his farewell address in 1796
that extreme partisanship would lead us to the ruins of public
liberty. Those were his words. This hyperpartisan impeachment
is probably one of the most divisive and destructive things
that we could possibly do to our American family.
Let me tell you what I heard from my constituents in
multiple townhalls, in meetings back in my district just 2 days
ago. The people of this country are sick of this. They're sick
of the politics of personal destruction. They're sick of this
toxic atmosphere that is being created here, and they're deeply
concerned about where all of this will lead us in the years
ahead. Rightfully so.
You know what the greatest threat is? The thing that ought
to keep every single one of us up at night? It's the rapidly
eroding trust of the American people in their institutions. One
of the critical presuppositions and foundations of a self-
governing people in a constitutional republic is they will
maintain a basic level of trust in their institutions, in the
rule of law, in the system of justice, in the body of elected
Representatives, their citizen legislators in the Congress.
The greatest danger of this fraudulent impeachment
production is not what happens this afternoon or by Christmas
or in the election next fall. The greatest danger is what this
will do in the days ahead to our 243-year experiment in self-
governance. What effect this foolish new precedent, this
Pandora's box, will have upon our beleaguered Nation 6 or 7
years from now, a decade from now, in the ruins of public
liberty that are being created by this terribly shortsighted
exercise today. God help us.
I yield back.
Chairman Nadler. The gentleman yields back.
Mr. Swalwell.
Mr. Swalwell. Professor Turley as a former prosecutor, I
recognize a defense attorney trying to represent their client,
especially one who has very little to work with in the way of
facts. And today you're representing the Republicans in their
defense of the President.
Mr. Turley. That's not my intention, sir.
Mr. Swalwell. Professor, you've said that this case
represents a dramatic turning point in Federal impeachment
precedent, the impact of which will shape and determine future
cases. The House, for the first time in the modern era, asked
the Senate to remove someone for conduct for which he was never
charged criminally and the impropriety of which has never been
tested in a court of law.
But that's actually not a direct quote from what you said
today. It sounds a lot like what you've argued today, but
that's a quote from what you argued as a defense lawyer in a
2010 Senate impeachment trial.
Professor, did you represent Federal Judge Thomas Porteous?
Mr. Turley. I did indeed.
Mr. Swalwell. Judge Porteous was charged on four Articles
of Impeachment, ranging from engaging in a pattern of conduct
that is incompatible with the trust and confidence placed in
him as a Federal judge to engaging in a longstanding pattern of
corrupt conduct that demonstrates his unfitness to serve as a
United States district court judge.
On each count, Judge Porteous was convicted by at least 68
and up to 96 bipartisan Senators. Thankfully, that Senate did
not buy your argument that a Federal official should not be
removed if he's not charged criminally. And, respectfully,
Professor, we don't buy it either.
But we're here because of this photo. It's a picture of
President Zelensky in May of this year, standing on the eastern
front of Ukraine as a hot war was taking place and up to 15,000
Ukrainians have died at the hands of Russians. I'd like to
focus on the impact of President Trump's conduct, particularly
with our allies and our standing in the world.
This isn't just a President, as Professor Karlan has
pointed out, asking for another foreign leader to investigate a
political opponent. It also is a President leveraging a White
House visit as well as foreign aid. As the witnesses have
testified, Ukraine needs our support to defend itself against
Russia. I heard directly from witnesses how important the visit
and aid where, particularly from Ambassador Taylor.
[Video shown.]
Mr. Swalwell. Professor Karlan, does the President's
decision to withhold from Ukraine such important official
acts--a White House visit and military aid--in order to
pressure President Zelensky relate to the Framers' concerns
about abuse of power and entanglements with foreign nations?
Ms. Karlan. It relates to the abuse of power. The
entanglements with foreign nations is a more complicated
concept for the Framers than for us.
Mr. Swalwell. Professor Karlan, I think you'd agree, we are
a Nation of immigrants?
Ms. Karlan. Yes.
Mr. Swalwell. Today, 50 million immigrants live in the
United States. I'm moved by one who recently told me, as I was
checking into a hotel, about his Romanian family. He came here
from Romania and said that every time he had gone home for the
last 20 years, he would always tell his family members how
corrupt his country was that he had left and why he had come to
the United States.
And he told me, in such humiliating fashion, that, when he
has gone home recently, they now wag their finger at him, and
say: You're going to lecture us about corruption?
What do you think, Professor Karlan, does the President's
conduct say to the millions of Americans who left their
families and livelihoods to come to a country that represents
the rule of law?
Ms. Karlan. I think it suggests that we don't believe in
the rule of law. And I think it tells emerging democracies
around the world not to take it seriously when we tell them
that their elections are not legitimate because of foreign
interference or their elections are not legitimate because of
persecution of the opposing party. I mean, President Bush
announced that he did not consider the elections in Belarus in
2006 to be legitimate for exactly that reason, because they
went after political opponents.
Mr. Swalwell. Thank you.
And, finally, Professor Feldman, Professor Turley pointed
out that we should wait and that we should go to the courts,
but you would acknowledge that we have gone to the courts; we
have been in the courts for over 6 months, many times on
matters that are already settled in the United States Supreme
Court, particularly U.S. v. Nixon, where the President seems to
be running out the clock. Is that right?
Mr. Feldman. Yes, sir.
Mr. Swalwell. Thank you. I yield back.
Chairman Nadler. The gentleman yields back.
In a moment, we will recess for a brief 5 minutes. First,
I'd ask everyone in the room to remain seated and quiet while
the witnesses exit the room. I also want to remind those in the
audience that you may not be guaranteed your seat if you leave
the hearing room at this time.
At this time, the committee will stand in a short recess.
[Recess.]
Chairman Nadler. The committee will come to order. We are
proceeding under the five-minute rule.
Mr. Biggs.
Mr. Biggs. Thank you.
One of my colleagues wondered how this panel can opine as
to the--as to whether the President committed an impeachable
offense and the answer, quite, frankly, is because you came in
with a preconceived notion. You already made that
determination/decision and I'll give you a for instance.
Until a recent colloquy, several of you consistently said
that the President said during that July 25th conversation with
President Zelensky, you said, ``The President said I would like
to you do me a favor''; but that is inaccurate. It was finally
cleared in that colloquy, and I'm going read it to you. ``I
would like you to do us a favor though, because our country has
been through a lot.''
One of you said, well, that's because the President was
using royal ``we.'' Here the President's talking about the
country. That's what he's talking about. It's audacious to say
it's using the royal ``we.'' That's royal, all right; but it
ain't the royal ``we.''
And I'll just tell you. When you come in with a
preconceived notion, it becomes obvious. One of you just said,
Mr. Feldman, you, it was you who said, and I'm going to quote
here, roughly. I think this is exactly what you said though.
Until the call of July 25th, I was an impeachment skeptic, too.
I don't know. I'm looking at an August 23rd, 2017,
publication where you said if President Donald Trump pardons
Joe Arpaio, it would be an impeachable offense. He did
ultimately pardon him.
In 2017, the New York book review--Review of Books, Mr.
Feldman, Professor Feldman, said, Defamation by tweet is an
impeachable offense.
And I think of the history of this country, and I think, if
defamation or libel or slander is an impeachable offense, I
can't help but reflect about John Adams, about Thomas Jefferson
who routinely pilloried their political opponents. In fact, at
the time, the factions or parties actually bought newspapers to
attack their political opponents. So, this rather expansive and
generous view you have on what constitutes impeachment is a
real problem.
This morning one of you mentioned the Constitutional
Convention and several of you mentioned Mr. Davies and you
talked about the Constitutional Convention. It's been a while
since I read the minutes. So I just briefly reviewed, because I
remembered the discussion on the impeachment as being more
pervasive, a little bit more expanded and on July 20, 1787--it
wasn't 1789, by the way. One of you testified it was 1789. It
was in 1787, July 20th, Benjamin Franklin is discussing
impeachment of a Dutch leader and he talked specifically about
what he would anticipate an impeachment to look like. He said
it would be a regular and peaceable inquiry that would have
taken place and, if guilty, then there would be a punishment.
If acquitted, then the innocent would be restored to the
confidence of the public. That needs to be taken into account
as well.
So I look also on a May 17, 2017, BBC article which is a
discussion about impeachment because President Trump had fired
James Comey. Alex Whiting of Harvard said it was hard to make
the obstruction of justice case with the sacking alone. The
President had clear legal authority, and there was arguably
proper or at least other reasons put forward for firing him.
And yet what we have here is this insistence by Mr.
Gerhardt that this should be--that was impeachable. That is--
that's contained in that article. I'll refer you to it, May 17,
2017, BBC.
What I'm suggesting to you today is a reckless bias coming
in here. You're not fact witnesses. You're supposed to be
talking about what the law is, but you came in with a
preconceived notion and bias.
And I want to read one last thing here, if I can find it,
from one of our witnesses here and it's dealing with something
that was said in a Maryland Law Review article in 1999. And
basically, if I can get to it, he's talking about this--he's
being critical of lack of self-doubt and an overwhelming
arrogance on the part of law professors who come in and opine
on impeachment.
That would be you, Mr. Gerhardt, who said something like
that. I can't find my quote or else I'd give it to you.
And so what I'm telling you is that is what has been on
display in this committee today.
And with that, I yield back.
Chairman Nadler. The gentleman yields back.
A little while ago Mr. Gaetz asked that certain material be
inserted into the record by unanimous consent. I asked to have
an opportunity to review it. We have reviewed it. The material
will be inserted, without objection.
[The information follows:]
MR. GAETZ FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. Mr. Lieu.
Mr. Lieu. Thank you, Chairman Nadler.
I first swore an oath to the Constitution when I was
commissioned as an officer in the United States Air Force. An
oath I took was not to a political party or to a President or
to a king. It was an oath to a document that has made America
the greatest Nation on earth.
I never imagined we'd now be in a situation where the
President or Commander in Chief is accused of using his office
for personal political gain that betrayed U.S. national
security, hurt our ally, Ukraine, and helped our adversary
Russia.
Now the Constitution provides a safeguard for when the
President's abuse of power and betrayal of national interests
are so extreme that it warrants impeachment and removal. It
seems notable that, of all the offenses they could have
included and enumerated in the Constitution, bribery is one of
only two that are listed.
So, Professor Feldman, why would the Framers choose bribery
of all the possible offenses they could have included to list?
Mr. Feldman. Bribery was the classic example for them of
the high crime and misdemeanor of abuse of office for personal
gain because if you take something of value while you're--when
you're able to affect an outcome for somebody else, you're
serving your own interests and not the interests of the people.
And that was commonly used in impeachment offenses in England
and that's one of the reasons they specified it.
Mr. Lieu. Thank you.
Now earlier in this hearing, Professor Karlan made the
point that bribery as envisioned by the Framers was much
broader than the narrow Federal criminal statute of bribery. I
think the reason for that is obvious. We are not in a criminal
proceeding. We're not deciding whether to send President Trump
to prison. This is a civil action. It's an impeachment
proceeding to decide whether or not we remove Donald Trump from
his job.
And so, Professor Karlan, it's true, isn't it, that we
don't have to meet the standards of a Federal bribery statute
in order to meet the standards for impeachable offense?
Ms. Karlan. That's correct. I'm sorry. That's correct.
Mr. Lieu. Thank you.
Yesterday Scalia law professor J.W. Verret, who is a
lifelong Republican, former Republican Hill staffer, who
advised the Trump pre-transition team, made the following
public statement about Donald Trump's conduct.
The call wasn't perfect. He committed impeachable offenses
including bribery.
So, Professor Karlan, I'm now going to show you two video
clips of the witness testimony related to the President's
withholding of the White House meeting in exchange for the
public announcement of an investigation into his political
rival.
[Video played.]
Mr. Lieu. And then I'll show you one more video clip
relating to the President's decision to withhold security
assistance that Congress had appropriated to Ukraine in
exchange for announcement of public investigation of his
political rival.
[Video played.]
Mr. Lieu. Professor Karlan, does that evidence, as well as
the evidence in the record, tend to show that the President met
the standards for bribery as envisioned in the Constitution?
Ms. Karlan. Yes, it does.
Mr. Lieu. I'm also a former prosecutor. I believe the
record and that evidence would also meet the standards for
criminal bribery. The Supreme Court's decision in McDonnell was
primarily about what constitutes an official act. The key
finding was an official act must involve a formal exercise of
governmental power on something specific pending before a
public official.
It's pretty clear we've got that here. We have hundreds of
millions of dollars of military aid that Congress specifically
appropriated. The freezing and unfreezing of that aid is a
formal exercise of governmental power.
But we don't even have to talk about the crime of bribery.
There's another crime here which is the solicitation of
Federal--of assistance of a foreign government in a Federal
election campaign. That straight up violates the Federal
Election Campaign Act at 52 U.S.C. 3101 and, oh, by the way,
that Act is also one reason Michael Cohen is sitting in prison
right now.
I yield back.
Chairman Nadler. The gentleman yields back.
Mr. McClintock.
Mr. McClintock. Thank you, Mr. Chairman.
Could I have a show of hands? How many on the panel
actually voted for Donald Trump in 2016? A show of hands.
Ms. Karlan. I don't think we're obligated----
Mr. McClintock. A show of hands.
Ms. Karlan [continuing]. To say anything about how we cast
our ballots.
Mr. McClintock. Just a show of hands.
Ms. Karlan. I will not----
Mr. McClintock. I think you made your position, Professor
Karlan, very, very clear.
Chairman Nadler. The gentleman will suspend. We'll suspend.
We'll suspend the clock, too.
Ms. Karlan. I have a right to cast a secret ballot.
Chairman Nadler. You may ask the question.
Mr. McClintock. Let me rephrase the question. How many of
you supported----
Chairman Nadler. The clock is stopped at the moment.
The gentleman may ask the question. The witnesses don't
have to respond.
Mr. McClintock. How many of you----
Chairman Nadler. The gentleman's time is restored.
Mr. McClintock [continuing]. Supported Donald Trump in
2016? A show of hands. Thank you.
Mr. Feldman. Not raising our hands is not an indication of
an answer, sir.
Mr. McClintock. Professor Turley, this impeachment inquiry
has been predicated on some rather disturbing legal doctrines.
One Democrat asserted that hearsay can be much better evidence
than direct evidence. Speaker Pelosi and others have said that
the President's responsibility is to present evidence to prove
his innocence.
Chairman Schiff's asserted--and we heard a discussion from
some of your colleagues today--that if you invoke legal rights
in defense of criminal accusations, ipso facto that's an
obstruction of justice and evidence of guilt.
My question of you is: What does it mean to our American
justice system if these doctrines take root in our country?
Mr. Turley. Well, what concerns me the most is that there
are no limiting principles that I can see in some of the
definitions that my colleagues have put forward and more
importantly, some of these impeachable offenses I only heard
about today.
I'm not too sure what ``attempting to abuse office'' means
or how you recognize it, but I'm pretty confident that nobody
on this committee truly wants the new standard of impeachment
to be betrayal of the national interest. That that is going to
be the basis for impeachment?
How many Republicans do you think would say that Barack
Obama violated that standard? That's exactly what James Madison
warned you against is that you would create effectively a vote
of no confidence standard in our Constitution.
Mr. McClintock. Well, then are we in danger of abusing our
own power of doing enormous violence to our Constitution by
proceeding in this manner? My Democratic colleagues have been
searching for a pretext for impeachment since before the
President was sworn in.
On this panel Professor Karlan called President Trump's
election illegitimate in 2017. She implied impeachment was a
remedy. Professor Feldman advocated impeaching the President
over a tweet that he made in March of 2017. That's just seven
weeks after his inauguration. Are we in danger of succumbing to
the maxima of Lewis Carroll's Red Queen, sentence first,
verdict afterwards?
Mr. Turley. Well, this is part of the problem of how your
view of the President can affect your assumptions, your
inferences, your view of circumstantial evidence.
I'm not suggesting that the evidence, if it was fully
investigated, would come out one way or the other. What I'm
saying is that we are not dealing with the realm of the
unknowable. You have to ask. We've burned two months in this
House, two months that you could have been in court, seeking a
subpoena for these witnesses. It doesn't mean you have to wait
forever, but you could have gotten an order by now. You could
have allowed the President to raise an executive privilege----
Mr. McClintock. I need to go on here.
The Constitution says that the executive authority shall be
vested in a President of the United States. Does that mean some
of the executive authority or all of it?
Mr. Turley. Well, obviously there's checks and balances on
all of these but the executive authority primarily obviously
rests with the President but these are all shared powers. And I
don't begrudge the investigation of the Ukraine controversy. I
think it was a legitimate investigation. What I begrudge is how
it has been conducted.
Mr. McClintock. Well, I tend to agree with that. I mean,
the Constitution commands the President take care that the laws
be faithfully enforced. That does in effect make him the chief
law enforcement officer in the Federal Government, does it not?
Mr. Turley. That's commonly expressed that way, yes.
Mr. McClintock. So if probable cause exists to believe a
crime's been committed, does the President have the authority
to inquire into that matter?
Mr. Turley. He has, but I think this is where we would
depart. I've been critical of the President in terms of
crossing lines with the Justice Department. I think that has
caused considerable problems. I also don't believe it's
appropriate, but we often confuse what is inappropriate with
what's impeachable. You know, many people feel that what the
President has done is obnoxious, contemptible; but
contemptible's not synonymous with impeachment.
Mr. McClintock. Let me ask you a final question. The
National Defense Authorization Act that authorized aid to
Ukraine requires the Secretary of Defense and State certify
that the Government of Ukraine has taken substantial actions to
make defense institutional reforms for, among other things, for
purposes of decreasing corruption.
Is the President exercising that responsibility when he
inquires into a matter that could involve illegalities between
American and Ukrainian officials?
Mr. Turley. That's what I'm referring to as unexplored
defenses. Part of the bias when you look at these facts is you
just ignore defenses. You say, well, those are just invalid but
they're the defenses. They're the other sides' account for
actions, and that's what hasn't been explored.
Chairman Nadler. The gentleman's time has expired.
Mr. Raskin.
Mr. Raskin. Thank you, Mr. Chairman.
I want to thank the witnesses for their hard work on a long
day. I want to thank them especially for invoking the American
Revolution which not only overthrew a king but created the
world's first antimonarchal Constitution. Your erudition makes
me proud to have spent a quarter of my career as a fellow
constitutional law professor before running for Congress.
Tom Paine said that in the monarchies the king is law but
in the democracies the law will be king. But today the
President advances an essentially monarchical argument. He said
that Article 2 allows him to do whatever he wants. He not only
says that but he believes it because he did something no other
American President has ever done before. He used foreign
military aid as a lever to coerce a foreign government to
interfere in an American election, to discredit an opponent,
and to advance his reelection campaign.
Professor Karlan, what does the existence of the
impeachment power tell us about the President's claim that the
Constitution allows him to do whatever he wants?
Ms. Karlan. It blows it out of the water.
Mr. Raskin. If he's right and we accept this radical claim
that he can do whatever he wants, all future Presidents seeking
reelection will be able to bring foreign governments into our
campaigns to target their rivals and to spread propoganda.
That's astounding. If we let the President get away with this
conduct, every President can get away with it.
Do you agree with that, Professor Feldman?
Mr. Feldman. I do. Richard Nixon sent burglars to break
into the Democratic National Committee headquarters, but
President Trump just made a direct phone call to the President
of a foreign country and sought his intervention in an American
election.
Mr. Raskin. So this is a big moment for America, isn't it?
If Elijah Cummings were here, he would say, Listen up, people.
Listen up.
How we respond will determine the character of our
democracy for generations.
Now Professors Feldman, Karlan, and Gerhardt told us there
were three dominant reasons invoked at the founding for why we
needed an impeachment power. Broadly speaking, it was an
instrument of popular self-defense against a President behaving
like a king and trampling the rule of law, but not just in the
normal royal sense of showing cruelty and vanity and treachery
and greed and averiis and so on but when Presidents threaten
the basic character of our Government and the Constitution,
that's when impeachment was about.
And the Framers invoked three specific kinds of misconduct
so serious and egregious that they thought they warranted
impeachment. First, the President might abuse his power by
corruptly using his office for personal, political, or
financial gain.
Well, Professor Feldman, what's so wrong with that? If the
President belongs to my party and I generally like him, what's
so wrong with him using his office to advance his own political
ambitions?
Mr. Feldman. Because the President of the United States
works for the people and so if he seeks personal gain, he's not
serving the interests of the people. He's, rather, serving the
interests that are specific to him and that means he's abusing
the office and he's doing things that he can only get away with
because he's the President and that is necessarily subject to
impeachment.
Mr. Raskin. Well, second and third, the Founders expressed
fear the President could subvert our democracy by betraying his
trust to foreign influence and interference and also by
corrupting the election process.
Professor Karlan, you're one of America's leading election
law scholars. What role does impeachment play in protecting the
integrity of our elections, especially in an international
context in which Vladimir Putin and other tyrants and despots
are interfering to destabilize elections around the world?
Ms. Karlan. Well, you know, Congress has enacted a series
of laws to make sure that there isn't foreign influence in our
elections and allowing the President to circumvent that
principle is a problem and, as I've already testified several
times, America is not just the last best hope, as Mr. Jeffries
said, but it's also the shining city on a hill and we can't be
the shining city on a hill and promote democracy around the
world if we're not promoting it here at home.
Mr. Raskin. Now any one of these actions alone would be
sufficient to impeach the President according the Founders. But
is it fair to say that all three causes for impeachment
explicitly contemplated by the Founders--abuse of power,
betrayal of our national security, and corruption of our
elections--are present in this President's conduct, yes or no?
Professor Feldman.
Mr. Feldman. Yes.
Mr. Raskin. And Professor Gerhardt.
Mr. Gerhardt. Yes sir.
Mr. Raskin. And Professor Karlan.
Ms. Karlan. Yes.
Mr. Raskin. You all agree. Okay.
And are any of you aware of any other President who has
essentially triggered all three concerns that animated the
Founders?
Mr. Feldman. No.
Ms. Karlan. No.
Mr. Gerhardt. No as well.
Mr. Raskin. Mr. Chairman, it's hard to think of a more
monarchical sentiment than I can do whatever I want as
President.
And I yield back.
Chairman Nadler. The gentleman yields back.
Mrs. Lesko.
Mrs. Lesko. Thank you, Mr. Chair.
Mr. Chair, I ask unanimous consent to insert into the
record a letter I wrote and sent to you, asking, calling on you
to cancel any and all future impeachment hearings and outlining
how the process----
Chairman Nadler. Without objection, the letter will be
entered into the record.
[The information follows:]
MS. MUCARSEL-POWELL FOR THE OFFICIAL RECORD
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Mrs. Lesko. Thank you.
During an interview, Mr. Chairman, on MSNBC's Morning Joe
on November 26, 2018, Chairman Nadler outlined a three-prong
test that he said would allow for a legitimate impeachment
proceeding. Now I quote Chairman Nadler's remarks, and this is
what he said.
There really are three--there really are three questions, I
think. First, has the President committed impeachable offenses?
Second, do those offenses rise to the gravity that's worth
putting the country through the drama of impeachment? And,
number 3, because you don't want to tear the country apart, you
don't want half of the country to say to the other half for the
next 30 years he--we won the election. You stole it from us.
You have to be able to think at the beginning of the
impeachment process that the evidence is so clear of offenses
so grave, that once you've laid out all of the evidence, a good
fraction of the opposition, the voters, will reluctantly admit
to themselves they had to do it. Otherwise, you have a partisan
impeachment which will tear the country apart. If you meet
these three tests, then I think you do the impeachment.
And those were the words of Chairman Nadler. Now let's see
if Chairman Nadler's three-prong test has been met.
First, has the President committed an impeachable offense?
No. The evidence and testimony has not revealed any impeachable
offense.
Second, do those offenses rise to the gravity that's worth
putting the country through the drama of impeachment? Again,
the answer is, no, there's nothing here that rises to the
gravity that's worth putting the country through the drama of
impeachment.
And, third, have the Democrats laid out a case so clear
that even the opposition has to agree? Absolutely not. You and
House Democrat leadership are tearing apart the country. You
said the evidence needs to be clear. It is not. You said
offenses need to be grave. They are not. You said that, once
the evidence is laid out, that the opposition will admit they
had to do it. That has not happened. In fact, polling and the
fact that not one single Republican voted on the impeachment
inquiry resolution or on the Schiff report reveal the opposite
is true.
In fact, what you and your Democratic colleagues have done
is opposite of what you said had to be done. This is a partisan
impeachment, and it is tearing the country apart.
I take this all to mean that Chairman Nadler, along with
the rest of the Democratic caucus, is prepared to continue
these entirely partisan, unfair proceedings and traumatize the
American people all for political purpose. I think that's a
shame. That's not leadership. That's a sham.
And so I ask Mr. Turley: Has Chairman Nadler satisfied his
three-prong test for impeachment?
Mr. Turley. With all due respect to the chairman, I do not
believe that those factors were satisfied.
Mrs. Lesko. Thank you.
And I want to correct something for the record as well.
Repeatedly today and other days Democrats have repeated what
was said in the text of the call. ``Do me a favor though,'' and
they imply it was against President Biden, to investigate
President Biden. It was not. It was not. In fact, let me read
what the transcript says.
It says: President Trump, I would like to you do us a favor
though because our country has been through a lot and Ukraine
knows alot about it. I would like you to find out what happened
with this whole situation with Ukraine. They say CrowdStrike. I
guess you have one of your own wealthy people.
It says nothing about the Bidens. So, please stop
referencing those two together.
And I yield back.
Chairman Nadler. The gentlelady yields back.
Ms. Jayapal.
Ms. Jayapal. Thank you, Mr. Chairman.
This is a deeply grave moment that we find ourselves in and
I thought the threat to our Nation was well articulated earlier
today by Professor Feldman when you said, If we cannot impeach
a President who abuses his office for personal advantage, we no
longer live in a democracy. We live in a monarchy, or we live
under a dictatorship.
My view is that if people cannot depend on the fairness of
our elections, then what people are calling divisive today will
be absolutely nothing compared to the shredding of our
democracy.
After the events of Ukraine unfolded, the President claimed
that the reason he requested an investigation into his
political opponents and withheld desperately needed military
aid for Ukraine was supposedly because he was worried about
corruption. However, contrary to the President's statements,
various witnesses including Vice President Pence's special
advisor, Jennifer Williams, testified that the President's
request was political. Take a listen.
[Video shown.]
Ms. Jayapal. Professor Karlan, is it common for someone who
gets caught to deny that their behavior is impermissible?
Ms. Karlan. Almost always.
Ms. Jayapal. And one of the questions before us is whether
the President's claim that he cared about corruption is
actually credible. Now you've argued before the Supreme Court
and the Supreme Court determined that, when assessing
credibility, we should look at a number of factors including
impact, historical background, and whether there are departures
from normal procedures, correct?
Ms. Karlan. That is correct.
Ms. Jayapal. So what we're ultimately trying to do is
figure out if someone's explanation fits with the facts and if
it doesn't, the explanation may not be true. So let's explore
that.
Lieutenant Colonel Vindman testified that he prepared
talking points on anticorruption reform for President Trump's
call with Ukrainian President Zelensky. However, based on the
transcripts released of those calls in April and July,
President Trump never mentioned these points of corruption. He
actually never mentioned the word ``corruption.'' Does that go
to any of those factors? Is that significant?
Ms. Karlan. Yes, it goes to the one about procedural
irregularities and it also goes to the one that says you look
at the kind of things that led up to the decision that you're
trying to figure out somebody's motive about.
Ms. Jayapal. So let's try another one. Ambassador Volker
testified that the President never expressed any concerns to
him about corruption in any country other than Ukraine. Would
that be relevant to your assessment?
Ms. Karlan. Yes, it would. It goes to the factor about
substantive departures.
Ms. Jayapal. And, Professor Karlan, there is, in fact--and
my colleague, Mr. McClintock, mentioned this earlier--a process
outlined in the National Defense Authorization Act to assess
whether countries that are receiving military aid have done
enough to fight corruption.
In May of 2019, my Republican colleague did not say this.
The Department of Defense actually wrote a letter, determining
that Ukraine passed this assessment and yet President Trump set
aside that assessment and withheld the congressionally approved
aid to Ukraine anyway in direct contradiction to the
established procedures he should have followed had he cared
about corruption.
Is that relevant to your assessment?
Ms. Karlan. Yes. That would also go to the factors the
Supreme Court's discussed.
Ms. Jayapal. What about the fact--and I think you mentioned
this earlier as one of the key things that you read in the
testimony--that President Trump wanted the investigations of
Burisma and the Bidens announced but that he actually didn't
care whether they were conducted. That was in Ambassador
Sondland's testimony.
What would you say about that?
Ms. Karlan. That goes to whether the claim that this is
about politics is a persuasive claim because that goes to the
fact that it's being announced publicly, which is an odd thing.
I mean, maybe Mr. Swalwell could probably answer this better
than I because he was a prosecutor, but generally you don't
announce the investigation in a criminal case before you
conduct it because it puts the person on notice that they're
under investigation.
Ms. Jayapal. And given all of these facts--and there are
more that we don't have time to get to--how would you assess
the credibility of the President's claim that he was worried
about corruption?
Ms. Karlan. Well, I think you ought to make that
credibility determination because you have the sole power of
impeachment. If I were a Member of the House of
Representatives, I would infer from this that he was doing it
for political reasons.
Ms. Jayapal. If we don't stand up now to a President who
abuses his power, we risk sending a message to all future
Presidents that they can put their own personal political
interests ahead of the American people, our national security,
and our elections; and that is the gravest of threats to our
democracy.
I yield back.
Chairman Nadler. The gentlelady yields back.
I now recognize Mr. Gohmert for the purpose of unanimous
consent request.
Mr. Gohmert. Yes, Mr. Chairman. I would ask unanimous
consent to offer an article by Daniel Huff.
Chairman Nadler. Without objection, the article will be
entered into the record.
[The information follows:]
MR. GOHMERT FOR THE OFFICIAL RECORD
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Chairman Nadler. I now recognize Mr. Reschenthaler to
question the witnesses.
Mr. Reschenthaler. Thank you, Mr. Chairman.
I'm starting off today doing something that I don't
normally do, and I'm going to quote Speaker of the House Nancy
Pelosi. In March, the speaker told The Washington Post--I'm
going to quote this.
Impeachment is so divisive to the country that unless
there's something so compelling and overwhelming and
bipartisan, I don't think we should go down that path because
it divides the country.
Well, on that, the speaker and I both agree. You know who
else agrees? The Founding Fathers. The Founding Fathers
recognized that crimes warranting impeachment must be so
severe, regardless of political party, that there is an
agreement that the actions are impeachable.
But let's go back to Speaker Pelosi's words just one more
time. The speaker says the case for impeachment must be also
compelling. Well, after last months's Schiff show, this what is
we learned. There is no evidence that the President directed
anyone to tell the Ukrainians that aid was conditioned on
investigation. Aside from the mere presumptions by Ambassador
Sondland, there is no evidence that Trump was conditioning aid
on investigation and, if you doubt me, just go back to the
actual transcript because never in that call was the 2020
election mentioned and never in that call was military aid
mentioned.
In fact, President Trump told Senator Johnson on 31 August
that aid was not conditioned on investigation. Rather,
President Trump was rightfully skeptical about the Ukrainians.
Their country has a history of corruption, and he merely
warranted the Europeans to contribute more to a problem in
their own backyard. But I think we can all agree that it's
appropriate for the President as a steward of taxpayer dollars
to ensure that our money isn't wasted.
I said I wasn't going to go back to Speaker Pelosi, but I
do want to go back because I forgot. She also said that
impeachment should be only pursued when it's quote, unquote,
overwhelming. So it's probably not good for the Democrats that
none of the witnesses who testified before the Intel Committee
were able to provide firsthand evidence of a quid pro quo. But
I forgot. We're calling it bribery now after the focus group
last week, and there's no evidence of bribery either.
Instead, the two people who did have firsthand knowledge,
the President and President Zelensky, both say there was no
pressure on the Ukrainians; and, again, the transcript of July
25th backs this up.
And to go back to Nancy Pelosi, one more time, she said
that the movement for impeachment should be quote, unquote,
bipartisan, which is actually the same sentiment echoed by our
chairman, Jerry Nadler, who in 1998 said, and I quote, There
must never be a narrowly voted impeachment supported by one of
the major political parties and opposed by another.
Well, when the House voted on the Democrat's impeachment
inquiry, it was just that. It was the only bipartisan vote was
the one imposing the inquiry. The partisan vote was the one to
move forward with the inquiry. So we're 0 for 3.
Let's face it. This is a sham impeachment against President
Trump. It's not compelling, it's not overwhelming, and it's not
bipartisan. So even by the speaker's own criteria, this has
failed. Rather what this is is nothing more than a partisan
witch hunt which denies the fundamental fairness of our
American justice system and denies due process to the President
of the United States.
The Democrats's case is based on nothing more than
thoughts, feelings, and conjectures and a few--the thoughts and
feelings of a few unelected career bureaucrats and the American
people are absolutely fed up.
Instead of wasting our time on this, we should be doing
things like passing USMCA, lowering the cost of prescription
drugs, and working on our failing infrastructure in this
country.
With that said, Mr. Turley, I watched as your words have
been twisted and mangled all day long. Is there anything you
would like to clarify?
Mr. Turley. Only this. I think that one of the
disagreements that we have and I have with my esteemed
colleagues is what makes a legitimate impeachment, not what
technically satisfies an impeachment. There's very few
technical requirements of an impeachment. The question is what
is expected of you?
And my objection is that there is a constant preference for
inference over information, for presumptions over proof. That's
because this record hasn't been developed.
And if you're going remove a President, if you believe in
democracy, if you're going to remove a sitting President, then
you have an obligation not to rely on inference when there's
still information you can gather. And that's what I'm saying.
It's not that you can't do this. You just can't do it this way.
Mr. Reschenthaler. Thank you, Mr. Chairman.
Chairman Nadler. The gentleman yields back.
I now recognize Ms. Jackson Lee for the purpose of a
unanimous consent request.
Ms. Jackson Lee. Thank you, Mr. Chairman.
I'd like unanimous consent to place in the record a
statement, news statement, from checks and balances on
President Trump's abuse of office----
Chairman Nadler. Without objection, the----
Ms. Jackson Lee [continuing]. Republican and Democratic
Attorney Generals.
I ask unanimous consent.
Chairman Nadler. Without objection.
[The information follows:]
MS. JACKSON LEE FOR THE OFFICIAL RECORD
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Chairman Nadler. I now recognize Mrs. Demings for five
minutes for questioning the witnesses.
Mrs. Demings. Thank you, Mr. Chairman.
As a former law enforcement official, I know firsthand that
the rule of law is the strength of our democracy and no one is
above it, not our neighbors in our various communities, not our
coworkers, and not the President of the United States.
Yet the President has said that he cannot be prosecuted for
criminal conduct, that he need not comply with congressional
requests and subpoenas. Matter of fact, the President is trying
to absolve himself of any accountability.
Since the beginning of the investigation in early
September, the House sent multiple letters, document requests,
and subpoenas to the White House. Yet the President has refused
to produce documents and has directed others not to produce
documents.
He has prevented key White House officials from testifying.
The President's obstruction of Congress is pervasive. Since the
House began its investigation, the White House has produced
zero subpoena documents.
In addition, at the President's direction, more than a
dozen members of his administration have defied congressional
subpoenas. The following slides show those who have refused to
comply at the President's direction. We are facing a
categorical blockade by a President who's desperate to prevent
any investigation into his wrongdoing.
Professor Gerhardt, has a President ever refused to
cooperate in an impeachment investigation?
Mr. Gerhardt. Not until now.
Mrs. Demings. And any President who--I know Nixon delayed
or tried to delay turning over information. When that occurred,
was it at the same level that we're seeing today?
Mr. Gerhardt. President Nixon also had ordered his
subordinates to cooperate and testify. He didn't shut down any
of that. He produced documents and there were times--there were
certainly disagreements but there was not a wholesale, broad-
scale, across-the-board refusal to even recognize the
legitimacy of this House doing an inquiry.
Mrs. Demings. Did President Nixon's obstruction result in
an Article of Impeachment?
Mr. Gerhardt. Yes, ma'am, Article III.
Mrs. Demings. Professor Feldman, is it fair to say that if
a President stonewalls an investigation like we are clearly
seeing today into whether he has admitted an impeachable point,
he risks rendering the impeachment power moot?
Mr. Feldman. Yes. And indeed that's the inevitable effect
of a President refusing to participate. He's denying the power
of Congress under the Constitution to oversee him and to
exercise its capacity to impeach.
Mrs. Demings. Professor Gerhardt, when a President prevents
witnesses from complying with congressional subpoenas, are we
entitled to make any presumptions about what they would say if
they testified?
Mr. Gerhardt. Yes, ma'am, you are.
And I might just point out that one of the difficulties
with asking for a more thorough investigation is that's exactly
what the House has tried to conduct here, and the President has
refused to comply with subpoenas and other requests for
information. That's where the blockage occurs.
That's why there are documents not produced and why there
are people not testifying that people here today have said they
want to hear from.
Mrs. Demings. In relation to what you just said, Ambassador
Sondland testified, and I quote, everyone was in the loop. It
was no secret.
Professor Gerhardt, how is Ambassador Sondland's testimony
relevant here?
Mr. Gerhardt. His testimony's relevant. It's also rather
chilling to hear him say that everybody's in the loop; and when
he says that, he's talking about the people at the highest
levels of our Government, all of whom are refusing to testify
under oath or comply with subpoenas.
Mrs. Demings. Professors, I want to thank you for your
testimony.
The President used the power of his office to pressure a
foreign head of state to investigate an American citizen in
order to benefit his domestic political situation. After he was
caught--and I do know something about that--this President
proceeded to cover it up and refused to comply with valid
congressional subpoenas.
The Framers included impeachment in the Constitution to
ensure that no one, no one is above the law including and
especially the President of the United States.
Thank you, Mr. Chair. And I yield back.
Chairman Nadler. The gentlelady yields back.
Mr. Cline is recognized.
Mr. Cline. Thank you, Mr. Chairman.
It's just past 5 o'clock, and a lot of families are just
getting home from work right now. They're turning on the TV and
they're wondering what they're watching on TV. They're asking
themselves, Is this a rerun, because I thought I saw this a
couple of weeks ago. But no, this is not a rerun,
unfortunately. This is act two of the three-part tragedy, the
impeachment of President Trump.
And what we're seeing here is several very accomplished
constitutional scholars attempting to divine the intent,
whether it's of the President, or of the various witnesses who
appeared during the Schiff hearings. And it's very frustrating
to me, as a member of the Judiciary Committee, why we are where
we are today.
I asked to be a member of this committee because of its
storied history, because it was the defender of the
Constitution, because it was one of the oldest committees in
the Congress established by another Virginian, John George
Jackson. It's because two of my immediate predecessors,
Congressman Bob Goodlatte, who chaired this committee, and
Congressman Caldwell Butler also served on this committee. But
the committee that they served under--served on is dead. That
committee doesn't exist anymore. That committee is gone.
Apparently, now, we don't even get to sit in the Judiciary
Committee room. We're in the Ways and Means Committee room. I
don't know why. Maybe because there's more room. Maybe because
the portraits of the various chairmen who would be staring down
at us might just intimidate the other side as they attempt what
is essentially a sham impeachment of this President.
You know, looking at where we are, the lack of the use of
the Rodino rules in this process is shameful. The fact that we
got witness testimony for this hearing this morning is
shameful. The fact that we got the Intelligence Committee
report yesterday, 300 pages of it, is shameful.
I watched the Intelligence Committee hearings from the
back, although I couldn't watch them all because the Judiciary
Committee actually scheduled business during the Intelligence
Committee hearings, so the Judiciary Committee members weren't
able to watch all of the hearings. But I didn't get to--I'd get
to read the transcripts of the hearings that were held in
private. I was not able to be a part of the Intelligence
Committee hearings that were in the SCIF.
We haven't seen the evidence from the Intelligence
Committee yet. We've asked for it. We haven't received it. We
haven't heard from any fact witnesses yet before we get to hear
from these constitutional scholars about whether or not the
facts rise to the level of an impeachable offense.
Mr. Turley, it's not just your family and dog who are
angry. Many of us on this committee are angry. Many of us
watching at home across America are angry, because this show
has degenerated into a farce. And, as I said, the Judiciary
Committee of my predecessors is dead. And I look to a former
chairman, Daniel Webster, who said: We are all agents of the
same supreme power, the people.
And it's the people who elected this President in 2016, and
it's the people who should have the choice as to whether or not
to vote for this President in 2020, not the members of this
committee, not Speaker Nancy Pelosi, and not the Members of
this House of Representatives. It should be the people of the
United States who get to decide who their President is in 2020.
I asked several questions about obstruction of justice to
Mr. Mueller when he testified. Mr. Turley, I know that you
mentioned obstruction of justice several times in your
testimony. I want to yield to Mr. Ratcliffe to ask a concise
question about that issue.
Mr. Ratcliffe. I thank the gentleman for yielding.
Professor Turley, in the last few days we've been hearing
that despite no questions to any witnesses during the first 2
months of the first phase of this impeachment inquiry that the
Democrats may be dusting off the obstruction of justice portion
of the Mueller report. It seems to me that we all remember how
painful it was to listen to the special counsel's analysis of
the obstruction of justice portion of that report. I'd like you
to address the fatal flaws from your perspective with regard to
the obstruction of justice portion of that.
Chairman Nadler. The gentleman's time is expired. The
witness may answer the question, briefly.
Mr. Turley. Thank you, Mr. Chairman. I've been a critic of
the obstruction theory behind the Russia investigation because,
once again, it doesn't meet what I think are the clear
standards for obstruction. There were 10 issues that Mueller
addressed. The only one that I think was--that raised a serious
issue, quite frankly, was the matter with Don McGahn. There's a
disagreement about that.
But also, the Department of Justice rejected the
obstruction of justice claim, and it was not just the Attorney
General. It was also the Deputy Attorney General, Rod
Rosenstein.
Chairman Nadler. The gentleman's time is well expired. Mr.
Correa.
Mr. Correa. Thank you, Mr. Chairman.
And I'd like to thank our witnesses for being here today. I
can assure you your testimony is important, not only to this
body, but to America that is listening very intently on what
the issues before us are, and why is it so important that all
of us understand the issues before us.
Professor Feldman, as was just discussed, President Trump
has ordered the executive branch to completely blockade the
efforts of this House to investigate whether he committed high
crimes and misdemeanors in his dealings with the Ukraine. Is
that correct?
Mr. Feldman. Yes, it is.
Mr. Correa. President Trump has also asserted that many
officials are somehow absolutely immune from testifying in this
impeachment inquiry. On the screen behind you is the opinion by
Judge Jackson, a Federal judge here in D.C., that rejects
President Trump's assertion.
Professor Feldman, do you agree with Judge Jackson's ruling
that President Trump has invoked a nonexistent legal basis to
block witnesses from testifying in this impeachment inquiry?
Mr. Feldman. I agree with the thrust of Judge Ketanji Brown
Jackson's opinion. I think that she correctly held that there
is no absolute immunity, which would protect a Presidential
adviser from having to appear before the House of
Representatives and testify. She did not make a ruling as to
whether executive privilege would apply in any given situation,
and I think that was also appropriate, because the issue had
not yet arisen.
Mr. Correa. And let me quote Judge Jackson: Open quote,
``The primary takeaway from past 250 years of recorded American
history is that Presidents are not kings,'' close quote.
Professor Feldman, in the Framers' view, does the President
act more like a leader of democracy, or more like a monarch
when he orders officials to defy Congress as it tries to
investigate abuse of power and corruption of electeds?
Mr. Feldman. Sir, I don't even think the Framers could have
imagined that a President would flatly refuse to participate in
an impeachment inquiry, given that they gave the power of
impeachment to the House of Representatives, and assumed that
the structure of the Constitution would allow the House to
oversee the President.
Mr. Correa. Thank you. Professor Gerhardt, where can we
look in the Constitution to understand whether the President
must comply with the impeachment investigations?
Mr. Gerhardt. I think you can look throughout the entire
Constitution. A good place, of course, includes the Supremacy
Clause. The President also takes an oath. He takes an oath to
support and defend the Constitution of the United States. That
means that he's assuming office with certain constraints on
what he may do, and that there are measures for accountability
for any failure to follow his duty or follow the Constitution.
Mr. Correa. Thank you. And the President has said that he
is above the law, that Article II of the Constitution allows
him to, and I quote, ``do whatever I want.'' That can't be
true. Judge Jackson has said that no one is above the law.
Personally, I grew up in California in the 1960s. It was a
time when we were going to beat the Russians to the moon. We
were full of optimism. We believed in American democracy. We
were the best in the world. And back home on Main Street, my
mom and dad struggled to survive day to day. My mom worked as a
maid cleaning hotel rooms for a buck 50 an hour, and my dad
worked at the local paper mill, trying to survive day to day.
And what got us up in the morning was the belief, the optimism
that tomorrow was going to be better than today.
We're a Nation of freedom, democracy, economic opportunity,
and we always know that tomorrow's going to be better. And
today, I personally sit as a testament to the greatness of this
Nation, me, out of the hoods, in Congress. And I sit here in
this committee room also with one very important mission, which
is to keep the American Dream alive, to ensure that all of us
are equal, to ensure that nobody, nobody is above the law, and
to ensure that our Constitution and that our congressional
oversight of the Presidency is still something with meaning.
Thank you. Mr. Chair, I yield back.
Chairman Nadler. The gentleman yields back.
Mr. Armstrong.
Mr. Armstrong. Thank you, Mr. Chairman.
All day long we've been sitting here and listening to my
friends across the aisle and their witnesses claim that the
President demanded Ukraine do us a favor by assisting in 2020
reelection campaign before he would release the military aid.
This is like everything else in the sham impeachment, purposely
misleading and not based on the facts.
So let's review the actual transcript of the call. They
never mention the 2020 election. They never mention military
aid. It does, however, clearly show that the favor the
President requested was assistance with the ongoing
investigation into the 2016 election. Those investigations,
particularly the one done--being run by U.S. Attorney John
Durham, should concern Democrats.
And the transcript of this call shows that the President
was worried about the efforts of Ukraine relating to the 2016
election. We know this--and notice I'm using the word ``know''
and not the word ``infer''--from reading the transcript and
because he spoke about it ending with Mueller. We know this
because he wants the Attorney General to get in touch with the
Ukrainians about the issue. We have a treaty with Ukraine
governing these sorts of international investigations. But like
so many other things, these facts are inconvenient for
Democrats. They don't fit the impeachment narrative, so they're
misrepresented or ignored.
And I think it's important when we talk about this--and
whatever the burden of proof, beyond a reasonable doubt, clear
and convincing evidence, whether it's a judicial hearing, a
quasi-judicial hearing, or a congressional hearing, when we are
talking about these issues, I think we need to start with how
we look at it.
And I'm not a constitutional law professor, I'm just an old
criminal defense attorney, but when I walk into a courtroom, I
think of three things: What's the crime charged? What's the
conduct? And who's the victim? And we've managed to make it
till 5 o'clock today before we've talked about the alleged
victim of the crime, and that's President Zelensky.
At three different times, President Zelensky, at least
three different times, has denied being pressured by the
President. The call shows laughter, pleasantries, cordiality.
September 25th, President Zelensky states: No, you heard that
we had a good phone call. It was normal. We spoke about many
things. I think you read it and nobody pushed me. On October
10th, President Zelensky had a press conference, and I
encourage everybody to watch it. Even if you don't understand
it, 90 percent of communication is nonverbal. You tell me if
you think he's lying. There was no blackmail. December 2nd,
this Monday, I never talked to the President from the position
of quid pro quo.
So we have the alleged victim of quid pro quo, bribery,
extortion, whatever we're dealing with now today, repeatedly
and adamantly shouting from the rooftops that he never felt
pressure, that he was not the victim of anything. So in order
for this whole thing to stick, we have to believe that
President Zelensky is a pathological liar, or that the
Ukrainian President and the country are so weak that he has no
choice but to parade himself out there, demoralize himself for
the good of his country.
Either of these two assertions weakens their countries and
harms our efforts to help the Ukraine, and also begs the
question of how on earth did President Zelensky withstand this
illegal and impeachable pressure to begin with, because this
fact still has not changed: The aid was released to Ukraine and
did not take any action from them in order for it to flow.
And, with that, I'd yield to my friend, Mr. Jordan.
Mr. Jordan. I thank the gentleman for yielding.
Professor Karlan, context is important, isn't it?
Ms. Karlan. Yes, sir.
Mr. Jordan. Yeah, because just a few minutes ago when our
colleague from Florida presented a statement you made, you
said, Well, you got to take that statement in context. But it
seems to me you don't want to extend the same or apply the same
standard to the President. Because the now famous quote, ``I
would like you to do us a favor,'' you said about an hour and a
half ago that that didn't mean--``us''' didn't mean us, it
meant the President himself. But the clear reading of this ``I
would like you to do us a favor, though, because''--you know
what the next two words are?
Ms. Karlan. I don't have the document in front of me.
Mr. Jordan. I'll tell you. Because our country. He didn't
say, I would like you to do me a favor, though, because I have
been through a lot. He said, I want you to do us a favor,
though, because our country has been through a lot. You know
what this call--when this call happened? It happened the day
after Mueller was in front of this committee. Of course, our
country was put through 2 years of this.
And the idea that you're now going to say, Oh, this is the
royal ``we,'' and he's talking about himself ignores the entire
context of his statement. That whole paragraph, you know what
he ended the paragraph with, talking about Bob Mueller. And
this is the basis for this impeachment, this call? It couldn't
be further from the truth. You want the standard to apply when
Representative Gaetz makes one of your statements, Oh, you got
to look at the context. But when the President of the United
States is clear, you try to change his word. And when the
context is clear, he's talking about the 2 years that this
country went through because of this Mueller report, somehow
that standard doesn't apply to the President.
Chairman Nadler. The gentleman's time is expired.
Mr. Jordan. That is ridiculous.
Chairman Nadler. The gentleman's time is expired. Ms.
Scanlon.
Ms. Scanlon. I want to thank our constitutional experts for
walking us through the Framers' thinking on impeachment and why
they decided it was a necessary part of our Constitution. I'm
going to ask you to help us understand the implications of the
President's obstruction of Congress' investigation into his use
of the Office of the President to squeeze the Ukrainian
Government to help the Trump reelection campaign. And there's
certainly hundreds of pages on how one reaches that conclusion.
We know the President's obstruction did not begin with the
Ukraine investigation. Instead, his conduct is part of a
pattern, and I'll direct your attention to the timeline on the
screen. In the left-hand column, we see the President's
statement from his July call in which he pressured Ukraine, a
foreign government, to meddle in our elections. Then once
Congress got wind of it, the President tried to cover up his
involvement by obstructing the congressional investigation and
refusing to cooperate. But this isn't the first time we've seen
this kind of obstruction.
In the right-hand column, we can flash back to the 2016
election, when the President welcomed and used Russia's
interference in our election. And, again, when the special
counsel and then this committee tried to investigate the extent
of his involvement, he did everything he could to cover it up.
So it appears the President's obstruction of investigations
is part of a pattern. First, he invites foreign powers to
interfere in our elections, then he covers it up, and finally
he obstructs lawful inquiries into his behavior, whether by
Congress or law enforcement, and then he does it again.
So, Professor Gerhardt, how does the existence of such a
pattern help determine whether the President's conduct is
impeachable?
Mr. Gerhardt. The pattern, of course, gives us a tremendous
insight into the context of his behavior when he's acting, and
how do we explain those actions? By looking at the pattern. We
can infer--I think a very strong inference, in fact, is that
this is deviating from the usual practice, and he's been
systematically heading towards a culmination where he can ask
this question.
By the way, after the July 25th call, the money is not yet
released. And there's ongoing conversations we learn from other
testimony that, essentially, the money is being withheld
because the President wanted to make sure the deliverable was
going to happen, that is the announcement of an investigation.
Ms. Scanlon. And in addition to the money not being
released, there also was not the White House meeting, which was
so important to Ukrainian security, right?
Mr. Gerhardt. Yes, ma'am, that's right.
Ms. Scanlon. Professor Feldman, we noted previously that a
Federal District Court recently rejected the President's
attempt to block witnesses from testifying to Congress, saying
that Presidents are not kings. The Founders included two
critical provisions in our Constitution to prevent our
President from becoming a king, and our democracy from becoming
a monarchy. And those protections were Presidential elections
and impeachment, correct?
Mr. Feldman. Correct.
Ms. Scanlon. Based on the pattern of conduct that we're
discussing today, the pattern of inviting foreign interference
in our elections for political gain, and then obstructing
lawful investigation, has the President undermined both of
those protections?
Mr. Feldman. He has. And it's crucial to note that the
victim of a high crime and misdemeanor, such as the President
is alleged to have committed, is not President Zelensky and is
not the Ukrainian people. The victim of the high crime and
misdemeanor is the American people. Alexander Hamilton said
very clearly that the nature of a high crime and misdemeanor is
that they are related to injuries done to the society itself.
We, the American people, are the victims of the high crime and
misdemeanor.
Ms. Scanlon. And what is the appropriate remedy in such a
circumstance?
Mr. Feldman. The Framers created one remedy to respond to
high crimes and misdemeanors, and that was impeachment.
Ms. Scanlon. Thank you. You know, I've spent over 30 years
working to help clients and schoolchildren understand the
importance of our constitutional system, and the importance of
the rule of law. So the President's behavior is deeply, deeply
troubling.
The President welcomed and used election interference by
Russia, publicly admitted he would do it again, and did, in
fact, do it again, by soliciting election interference from
Ukraine. And throughout, the President has tried to cover up
his misconduct. This isn't complicated. The Founders were
clear, and we must be, too. Such behavior in a President of the
United States is not acceptable.
I yield back.
Chairman Nadler. The gentlelady yields back.
Mr. Cicilline, you will be recognized for a unanimous
consent request.
Mr. Cicilline. Mr. Chairman, I ask unanimous consent that a
document which lists the 400 pieces of legislation passed by
the House, 275 bipartisan bills, 80 percent which remain
languishing in the Senate, be made a part of the record in
response to Mr. Gaetz's claim that we're not getting the work
done.
Chairman Nadler. Without objection, the document will be
made part of the record.
[The information follows:]
MR. CICILLINE FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. Mr. Biggs is recognized for a unanimous
consent request.
Mr. Biggs. Yes, Mr. Chairman, I seek unanimous consent for
a packet of 54 documents and items which have previously been
submitted.
Chairman Nadler. Without objection, the documents will be
entered into the record.
[The information follows:]
MR. BIGGS FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cicilline. Mr. Chairman, may I have another unanimous--
--
Chairman Nadler. For what purpose does the gentleman seek--
--
Mr. Cicilline. Mr. Chairman, I ask unanimous consent that
this article that was just published about 15 minutes ago
entitled ``Law Professor Jonathan Turley said Democrats are
setting a record for a fast impeachment. That's demonstrably
false'' be made part of the record.
Chairman Nadler. Without objection----
Mr. Johnson of Louisiana. Mr. Chairman.
Chairman Nadler. Without objection, the document will be
made part of the record.
[The information follows:]
MR. CICILLINE FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. Who seeks recognition?
Mr. Johnson of Louisiana. Mr. Chairman.
Chairman Nadler. For what purpose does the gentleman seek
recognition?
Mr. Johnson of Louisiana. I seek unanimous consent to enter
into the record a tweet that the First Lady of the United
States just issued within the hour that says, quote, ``A minor
child deserves privacy and should be kept out of politics.
Pamela Karlan, you should be ashamed of your very angry and
obviously biased public pandering, and using a child to do
it,'' unquote.
Chairman Nadler. Without objection, the document will be
entered into the record.
[The information follows:]
MR. JOHNSON (LA) FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. Mr. Steube is recognized for the purpose
of questioning the witnesses. Mr. Steube is not here
momentarily.
Ms. Garcia is recognized.
Ms. Garcia. Thank you, Mr. Chairman.
And I, too, want to thank all the witnesses for their time
and your patience today. I know it's been a long day, but the
end is in sight.
As my colleague, Ms. Scanlon, observed, the similarities
between the President's conduct in the Ukraine investigation
and his conduct in the special counsel's investigation are hard
to ignore. In fact, we are seeing it as a pattern of a
Presidential abuse of power. The President called the Ukraine
investigation a hoax, and the Mueller investigation a witch
hunt. He has threatened the Ukraine whistleblower for not
testifying, like he threatened to fire his Attorney General for
not obstructing the Russia investigation.
The President fired Ambassador Yovanovitch, and publicly
tarnished her reputation, much in the same way he fired his
White House counsel, and publicly attacked his integrity. And
finally, the President attacked the civil servants who have
testified about Ukraine, just like he attacked career officials
of the Department of Justice for investigating his obstruction
of the Russia investigation. Under any other circumstances,
such behavior by any American President would be shocking, but
here it is a repeat of what we have already seen in the special
counsel's investigation.
I'd like to take a moment to discuss the President's
efforts to obstruct the special counsel's investigation, a
subject that this committee has been investigating since March.
Here are two slides. The first one will show, as he did with--
as the President, as he did with Ukraine, tried to coerce his
subordinates to stop an investigation into his misconduct by
firing Special Counsel Mueller. And the second slide, this
shows that when the news broke out of the President's order,
the President directed his advisers to falsely deny he had made
the order.
Professor Gerhardt, are you familiar with the facts
relating to these three episodes as described in the Mueller
report? Yes or no, please.
Mr. Gerhardt. Yes, ma'am.
Ms. Garcia. So accepting the special counsel's evidence as
true, is this pattern of conduct obstruction of justice?
Mr. Gerhardt. It's clearly obstruction of justice.
Ms. Garcia. And why would you say so, sir?
Mr. Gerhardt. The obvious object of this activity is to
shut down an investigation. And, in fact, the acts of the
President, according to these facts, each time is to use the
power that he has unique to his office, but in a way that's
going to help him frustrate the investigation.
Ms. Garcia. So does this conduct fit within the Framers'
view of impeachable offenses?
Mr. Gerhardt. I believe it does. I mean, the entire
Constitution, including separation of powers, is designed to
put limits on how somebody may go about frustrating the
activity of another branch.
Ms. Garcia. So you would say that this also would be an
impeachable offense?
Mr. Gerhardt. Yes, ma'am.
Ms. Garcia. Thank you, because I agree with you. The
President's actions and behavior do matter. The President's
obstruction of justice definitely matters. As a former judge
and as a Member of Congress, I have raised my right hand and
put my left hand on a Bible more than once, and have sworn to
uphold the Constitution and laws of this country.
This hearing is about that, but it's also about the core of
the heart of our American values, the values of duty, honor,
and loyalty. It's about the rule of law. When the President
asks Ukraine for a favor, he did so for his personal political
gain, and not on behalf of the American people. And if this is
true, he would have betrayed his oath and betrayed his loyalty
to this country.
A fundamental principle of our democracy is that no one is
above the law, not any one of you professors, not any one of us
up here, Members of Congress, not even the President of the
United States. That's why we should hold him accountable for
his actions, and that's why, again, thank you for testifying
today and helping us walk through all this to prepare for what
may come. Thank you, sir.
I yield back.
Chairman Nadler. The gentlelady yields back.
Mr. Neguse.
Mr. Neguse. Thank you, Mr. Chair, and thank you to each of
the four witnesses for your testimony today.
I'd like to start by talking about intimidation of
witnesses. As my colleague, Congresswoman Garcia, noted,
President Trump has tried to interfere in both the Ukraine
investigation and Special Counsel Mueller's investigation in
order to try to cover up his own misconduct. And in both the
Ukraine investigation and Special Counsel Mueller's
investigation, the President actively discouraged witnesses
from cooperating, intimidated witnesses who came forward, and
praised those who refused to cooperate.
For example, in the Ukraine investigation, the President
harassed and intimidated the brave public servants who came
forward. He publicly called the whistleblower a, quote,
``disgrace to our country,'' and said that his identity should
be revealed. He suggested that those involved in the
whistleblower complaint should be dealt with in the way that
we, quote, ``used to do,'' end quote, for spies and treason. He
called Ambassador Taylor, a former military officer with more
than 40 years of public service, a, quote, ``Never Trumper,''
end quote, on the same day that he called Never Trumpers,
quote, ``scum.''
The President also treated accusations about many of the
other public servants who testified, including Jennifer
Williams and Ambassador Yovanovitch. And as we know, the
President's latter tweet happened literally during the
Ambassador's testimony in this room, in front of the
Intelligence Committee, which she made clear was intimidating.
Conversely, we know that the President has praised
witnesses who have refused to cooperate. For example, during
the special counsel's investigation, the President praised Paul
Manafort, his former campaign manager, for not cooperating. You
can see the tweet up on the screen to my side.
As another telling example, the President initially praised
Ambassador Sondland for not cooperating, calling him, quote,
``a really good man and a great American.'' But after
Ambassador Sondland testified and confirmed that there was,
indeed, a quid pro quo between the White House visit and the
request for investigations, the President claimed that he,
quote, ``hardly knew the ambassador.''
Professor Gerhardt, you've touched on it previously, but
I'd like you to just explain. Is the President's interference
in these investigations by intimidating witnesses also the kind
of conduct that the Framers were worried about and, if so, why?
Mr. Gerhardt. It's clearly conduct I think that worried the
Framers, as reflected in the Constitution they have given us
and the structure of that Constitution. The activities you're
talking about here are consistent with the other pattern of
activity we've seen with the President, either trying to stop
investigations, either by Mr. Mueller, or by Congress, as well
as to ask witnesses to make false documents about testimony.
And all those different kinds of activities are not the kinds
of activities the Framers expected the President to be able to
take. They expect a President to be held accountable for it,
and not just in elections.
Mr. Neguse. Professor Turley, you've studied the
impeachments of President Johnson, President Nixon, President
Clinton. Am I right that President Nixon allowed senior White
House officials, including the White House counsel and the
White House chief of staff, to testify in the House impeachment
inquiry?
Mr. Turley. Yes.
Mr. Neguse. And you're aware that President Trump has
refused to allow his chief of staff or White House counsel to
testify in this inquiry, correct?
Mr. Turley. Yes, but various officials did testify, and
they are remaining in Federal employment.
Mr. Neguse. And that does not include the White House
counsel nor the White House chief of staff, correct?
Mr. Turley. That is correct.
Mr. Neguse. And am I right that President Clinton provided
written responses to 81 interrogatories from the House
Judiciary Committee during that impeachment inquiry?
Mr. Turley. I believe that is correct.
Mr. Neguse. Sounds about right? And you're aware that
President Trump has refused any request for information
submitted by the Intelligence Committee in this impeachment
inquiry?
Mr. Turley. I am, yes.
Mr. Neguse. Are you familiar with the letter issued by
White House counsel Pat Cipollone on October 8th, written on
behalf of President Trump and, in effect, instructing executive
branch officials not to testify in this impeachment inquiry?
Mr. Turley. Yes, I am.
Mr. Neguse. And am I correct that no President in the
history of the Republic before President Trump has ever issued
a general order instructing executive branch officials not to
testify in an impeachment inquiry?
Mr. Turley. That's where I'm not sure I can answer that
affirmatively. President Nixon, in fact, went to court over
access to information, documents and the like, and he lost.
Mr. Neguse. Well, Professor Turley, I would just, again,
refer you back to the history that's been recounted by each of
the distinguished scholars here today, because we know, as we
recount these examples, that President Nixon did, in fact,
allow his chief of staff and his chief counsel to testify, and
this President has not. We know that President Clinton
responded to interrogatories propounded by that impeachment
inquiry, and that this President has not. At the end of the
day, this Congress and this committee has an obligation to
ensure that the law is enforced.
And, with that, I yield back the balance of my time.
Chairman Nadler. The gentleman yields back.
Mrs. McBath.
Mrs. McBath. Thank you, Mr. Chairman.
And, Professors, I want to thank you so very much for
spending these long arduous hours with us today. Thank you so
much for being here.
Following up on my colleague, Mr. Neguse's questions, I'd
like to briefly go through one particular example of the
President's witness intimidation that I find truly disturbing
and very devastating, because I think it's important that we
all truly see what's going on here. As the slide shows, on his
July 25th call, President Trump said that former Ambassador
Yovanovitch would, and I quote, ``go through some things.''
Ambassador Yovanovitch testified about how learning about the
President's statements made her feel.
[Video played.]
Mrs. McBath. And, as we all witnessed in real time, in the
middle of Ambassador Yovanovitch's live testimony, the
President tweeted about the Ambassador, discrediting her
service in Somalia and the Ukraine. Ambassador Yovanovitch
testified that the President's tweet was, and I quote, ``very
intimidating.''
Professor Gerhardt, these attacks on a career public
servant are deeply upsetting, but how do they fit into our
understanding of whether the President has committed high
crimes and misdemeanors, and how do they fit into our broader
pattern of behavior by this President to cover up and obstruct
his misconduct?
Mr. Gerhardt. One way in which it contributes to the
obstruction of Congress is that it doesn't just defame
Ambassador Yovanovitch. By every other account, she's been an
exemplary public servant. So what he's suggesting there may not
be consistent with what we know as facts.
But one of the things that also happens when he sends out
something like this, it intimidates everybody else who's
thinking about testifying, any other public servants that think
they should come forward. They are going to worry that they are
going to get punished in some way, they're going to face things
like she's faced.
Mrs. McBath. That is the woman President Trump has
threatened before you. And I can assure you, I personally know
what it's like to be unfairly attacked publicly for your sense
of duty to America. Ambassador Yovanovitch deserves better. No
matter your party, whether you are a Democrat or Republican, I
don't think any of us thinks that this is okay. It is plainly
wrong for the President of the United States to attack a career
public servant just for telling the truth as she knows it.
And I yield back the balance of my time.
Chairman Nadler. The gentlelady yields back.
Mr. Stanton.
Mr. Stanton. Thank you very much, Mr. Chairman, and thank
you to our outstanding witnesses here today.
President Trump has declared that he will not comply with
congressional subpoenas. This blanket categorical disregard of
the legislative branch began with the President's refusal to
cooperate with regular congressional oversight, and has now
extended to the House's constitutional duty on impeachment, the
reason why we are here today. This disregard has been on
display for the American people. When asked if he would comply
with the Don McGahn subpoena, President Trump said, quote,
``Well, we're fighting all the subpoenas,'' unquote.
Now, we've discussed here today the obstruction of Congress
Article of Impeachment against President Nixon. I think I'd
like to go a little bit deeper into that discussion and
juxtapose it with President Trump's actions.
Professor Gerhardt, can you elaborate on how President
Nixon obstructed Congress and how it compares to President
Trump's actions?
Mr. Gerhardt. As I was discussing earlier and including my
written statement, President Nixon ultimately refused to comply
with four legislative subpoenas. These were zeroing in on the
most incriminating evidence he had in his possession. So he
refused to comply with those subpoenas, making them the basis
for that third article, and he resigned a few days later.
Mr. Stanton. Professor Feldman, what are the consequences
of this unprecedented obstruction of Congress to our democracy?
Mr. Feldman. For the President to refuse to participate in
any way in the House's constitutional obligation of supervising
him to impeach him breaks the Constitution. It basically says,
Nobody can oversee me, Nobody can impeach me. First, I'll block
witnesses from appearing, then I'll refuse to participate in
any way, and then I'll say, you don't have enough evidence to
impeach me.
And ultimately, the effect of that is to guarantee that the
President is above the law and can't be checked. And since we
know the Framers put impeachment in the Constitution to check
the President, if the President can't be checked, he's no
longer subject to the law.
Mr. Stanton. Professor Gerhardt, would you agree that the
President's refusal to comply with congressional subpoenas
invokes the Framers' worst fears and endangers our democracy?
Mr. Gerhardt. It does. And one way in which to understand
that is to put all of his arguments together and then see what
the ramifications are. He says he's entitled not to comply with
all subpoenas. He says he's not subject to any kind of criminal
investigation while he's President of the United States. He's
immune to that. He's entitled to keep all information
confidential from Congress, doesn't even have to give a reason.
Well, when you put all those things together, he's blocked
off every way in which to hold himself accountable except for
elections. And the critical thing to understand here is that is
precisely what he was trying to undermine in the Ukraine
situation.
Mr. Stanton. Professor Karlan, do you have anything to add
to that analysis?
Ms. Karlan. I think that is correct. And if I can just say
one thing.
Mr. Stanton. Please.
Ms. Karlan. I want to apologize for what I said earlier
about the President's son. It was wrong of me to do that. I
wish the President would apologize, obviously, for the things
that he's done that's wrong, but I do regret having said that.
Mr. Stanton. Thank you, Professor.
One of the most important questions that every member of
this committee must decide is whether we are a Nation of laws
and not men. It used to be an easy answer, one we could all
agree on. When President Nixon defied the law and obstructed
justice, he was held to account by people on both sides who
knew that for a republic to endure, we must have fidelity to
our country rather than one party or one man. And the
obstruction we're looking at today is far worse than President
Nixon's behavior. Future generations will measure us, every
single member of this committee, by how we choose to answer
that question. I hope we get it right.
I yield back.
Chairman Nadler. The gentleman yields back.
Mr. Steube.
Mr. Steube. Thank you, Mr. Chairman.
I've only been in Congress since January of this year, and
on the very first day of my swearing in, a Democrat in my class
called for the impeachment of the President on day one, using
much more colorful language than I would ever use.
Since then, this committee focused on the Mueller report
and the Russia collusion theory. We all sat and listened to Mr.
Mueller state unequivocally that there was no evidence that the
Trump campaign colluded with Russia. So that didn't work for
the Democrats. So they then changed their talking points and
moved to the obstruction of justice theory, that the President
obstructed justice. Then that fizzled.
Then after coordinating with Chairman Schiff's staff, a
whistleblower filed a complaint based completely on hearsay and
overhearing other people that weren't on the phone call talk
about a phone call between two world leaders, which led to the
Intel Committee's so-called impeachment inquiry, which violated
all past historical precedent, denied the President basic due
process rights and fundamental fairness by conducting the so-
called inquiry in secret, without the minority's ability to
call witnesses, and denied the President the ability to have
his lawyers cross-examine witnesses, a right afforded to
President Clinton and every defendant in our justice system,
including rapists and murderers.
The Republicans on this committee have repeatedly requested
all evidence collected by the Intel Committee. As we sit here
today, we still don't have the underlying evidence that we've
been requesting, again, a right afforded every criminal
defendant in the United States. So instead, we sit here getting
lectures from law professors about their opinions, their
opinions, not facts. I guess the Democrats needed a
constitutional law refresher course. The Republicans don't.
Mr. Chairman, you have acknowledged, and I quote, the
House's, quote, ``power of impeachment demands a rigorous level
of due process. Due process means the right to confront
witnesses against you, to call your own witnesses, and to have
the assistance of counsel.'' Those are your words, Mr.
Chairman, not mine.
What are you afraid of? Let the minority call witnesses.
Let the President call witnesses. Clinton alone called 14
witnesses to testify. Let the President's counsel cross-examine
the whistleblower. Let the President's counsel cross-examine
the Intel staff who colluded with the whistleblower. In your
own words, those are the rights that should be afforded to the
President, rights every criminal defendant is afforded.
Even terrorists in Iraq are afforded more due process than
you and the Democratic majority have afforded the President. I
know, because I served in Iraq, and I prosecuted terrorists in
Iraq, and we provided terrorists in Iraq more rights and due
process in the Central Criminal Court of Iraq than you and
Chairman Schiff have afforded the President of the United
States.
No collusion, no obstruction, no quid pro quo, no evidence
of bribery except opinion, no evidence of treason, no evidence
of high crime or misdemeanors. We have a bunch of opinions from
partisan Democrats who have stated from day one that they want
to impeach the President, and not on this theory, but on
multiple other different theories. The American people are
smarter than your ABCs of impeachment that you've had on the
screen that were laid out today.
And it's extremely demonstrative of your lack of evidence,
given you called law professors to give their opinions, and not
fact witnesses to give their testimony today to be cross-
examined and the rights afforded to the President of the United
States.
Mr. Chairman, when can we anticipate that you will choose a
date for the minority day of hearings? Mr. Chairman, I'm asking
you a question. When can we anticipate that you will choose a
date for the minority day of hearings?
Chairman Nadler. The gentleman is recognized for the
purpose of questioning the witnesses, not for colloquy with
colleagues.
Mr. Steube. Well, then I'll do that after my time. I yield
the remainder of my time to Mr. Ratcliffe.
Mr. Ratcliffe. I thank my colleague from Florida for
yielding.
Professor Turley, since we last talked, based on
questioning from my colleagues across the aisle, it does, in
fact, appear that the Democrats do intend to pursue Articles of
Impeachment for obstruction of justice based on the Mueller
report. I asked you a question about that. You didn't really
get a chance to give a complete answer.
In your statement today, you make this statement: I believe
an obstruction claim based on the Mueller report would be at
odds with the record and the controlling law. The use of an
obstruction theory from the Mueller report would be
unsupported--unsupportable in the House and unsustainable in
the Senate.
Do you remember writing that?
Mr. Turley. Yes, I do.
Mr. Ratcliffe. Why did you write that?
Mr. Turley. Because I think it's true. The fact is that
this was reviewed by Main Justice. The special counsel did not
reach a conclusion on obstruction. He should have. I think that
his justification, quite frankly, was a bit absurd on not
reaching a conclusion, but the Attorney General, Deputy
Attorney General did, and they came to the right conclusion. I
don't think this is a real case for obstruction of justice.
But then, this body would be impeaching the President on
the basis of the inverse conclusion. I don't believe that it
would be appropriate.
Chairman Nadler. The gentleman's time is expired.
Ms. Dean.
Ms. Dean. Thank you, Mr. Chairman.
Words matter. In my earlier life, Professors, I was a
professor of writing. I taught my students to be careful and
clear about what they put to paper. That is a lesson that the
Framers of our Constitution understood far better than anyone.
They were laying the foundation for a new form of government,
one that enshrines democratic principles and protects against
those who would seek to undermine them. The Constitution
explicitly lays out that a President may be impeached for
treason, bribery, high crimes and misdemeanors.
We've heard a lot of words today, foreign interference,
bribery, obstruction of justice. Professors, I'd like to go
through the President's conduct and the public harms we have
discussed today and ask if they would fit into what the
forefathers contemplated when crafting those words of the
impeachment clause.
Professor Karlan, I'd like to ask you about the foreign
interference in elections. As Americans, we can agree foreign
interference/foreign influence erodes the integrity of our
elections and, as you said so plainly, it makes us less free.
Yet, on July 25, 2019, the President coerced Ukrainian
President Zelensky to announce an investigation into his
political rival, Trump's political rival, which was
corroborated by multiple witnesses throughout the Intelligence
Committee hearings.
Professor Karlan, can you explain to the American people,
in your opinion, whether the Framers considered solicitation of
foreign interference, and would they have considered it a high
crime or misdemeanor, and does the President's conduct rise to
that level?
Ms. Karlan. The Framers of our Constitution would have
considered it abhorrent, would have considered it the essence
of a high crime or misdemeanor for a President to invite in
foreign influence, either in deciding whether he will be
reelected, or deciding who his successor would be.
Ms. Dean. Thank you.
Professor Feldman, I'd like to talk to you about bribery.
During the course of the Intelligence Committee hearings,
multiple witnesses gave sworn unrebutted testimony that the
President withheld nearly $400 million in congressionally
approved aid on the condition that Russia--excuse me, that
Ukraine announce investigations into his chief political
adversary.
Professor, in your opinion, given those facts, and the
Framers' specific concerns, would you describe the President's
behavior here and the use of his public office for a private
benefit as rising to those levels?
Mr. Feldman. The Framers considered, as you said, bribery
to consist--bribery under the Constitution to consist of the
President abusing his office corruptly for personal gain. If
this House determines, and if this committee determines that
the President was, in fact, seeking personal gain in seeking
the investigations that he asked for, then that would
constitute bribery under the Constitution.
Ms. Dean. Thank you.
Professor Gerhardt, I'd like to ask you about obstruction
of justice. The President has categorically refused to produce
any documents responsive to congressional subpoenas, attacked
and intimidated prospective and actual witnesses, including
career and civil military--excuse me, military and civil
servants, as discussed here, like Ambassador Yovanovitch,
Lieutenant Colonel Vindman, Ambassador Taylor, Jennifer
Williams and others, and he directed all current and former
administration witnesses to defy congressional subpoenas.
Professor, based on that set of facts, does this conduct
meet the threshold for obstruction of justice, as envisioned in
the Constitution?
Mr. Gerhardt. Yes, ma'am, I believe it does. I remember
when I was here 21 years ago, along with Professor Turley,
testifying before a differently constituted committee on a very
serious question regarding impeachment. And I remember a number
of law professors very eloquently talking about President
Clinton's misconduct as an attack on the judicial system. And
that's what you just described to me.
Ms. Dean. Thank you. Thank you, Professors, all of you, all
four of you. What you did today is you brought part of our
Constitution to life, and I thank you for that. You've shown
what the Framers were mindful of when they wrote the
impeachment clause of our Constitution. They chose their words,
and their words matter.
You know, it was my father, Bob Dean, a terrific dad and a
talented writer, who instilled in me and my brothers and sister
a love of language. He taught us our words matter, the truth
matters. It's through that lens which I see all of the serious
and somber things we're speaking about today, foreign
interference, bribery, obstruction. The Framers likely could
not have imagined all three concerns embodied in a single
leader, but they were concerned enough to craft the remedy,
impeachment.
The times have found us. I am prayerful for our President,
for our country, for ourselves. May we the people always hold
high the decency and promise and ambition of our founding and
of the words that matter and of the truth.
With that, I yield back, Mr. Chairman.
Chairman Nadler. The gentlelady yields back.
Ms. Mucarsel-Powell.
Ms. Mucarsel-Powell. Thank you.
And thank you, Professors, for your time today. It's been a
long day. I want to tell you I did not have the privilege of
being born into this country. As an immigrant, when I became a
citizen to this great Nation, I took an oath to protect and
defend the Constitution from all foreign and domestic enemies.
And I had the fortune of taking that oath once again when I
became a Member of Congress. And that includes the
responsibility to protect our Nation from continuing threats
from a President, any President.
You testified that the President's actions are a continuing
risk to our Nation and democracy, meaning that this is not a
one-time problem. There is a pattern of behavior by the
President that is putting at risk fair and free elections, and
I think that we are here today because the American people
deserve to know whether we need to remove the President because
of it.
During the Nixon impeachment, the Judiciary Committee said,
quote, ``the purpose of impeachment is not personal punishment.
Its function is primarily to maintain constitutional
government.''
Professor Karlan, to me that means that impeachment should
be used when we must protect our American democracy. It is
reserved for offenses that present a continuing risk to our
democracy. Is that correct?
Ms. Karlan. Yes, it is.
Ms. Mucarsel-Powell. Thank you. And I want to show you an
example of what the President said just 1 week after the
transcript of the July 25th call was released. When a reporter
asked the President what he wanted from President Zelensky, and
he responded with this.
[Video played.]
Ms. Mucarsel-Powell. So we've heard today conflicting
dialogue from both sides, and I just want to ask, Mr. Feldman,
is this clear evidence from a President asking for a foreign
government to interfere in our elections?
Mr. Feldman. Congresswoman, I'm here for the Constitution.
We are here for the Constitution. And when the President of the
United States asks for assistance from a foreign power to
distort our elections for his personal advantage, that
constitutes an abuse of office and it counts as a high crime
and misdemeanor, and that's what the Constitution is here to
protect us against.
Ms. Mucarsel-Powell. Thank you.
And Professor Karlan, are the President's actions a
continuing risk that the Framers intended impeachment to be
used for?
Ms. Karlan. Yes. This takes us back to the quotation from
William Davie that we've all used several times in our
testimony, which is a President--without impeachment, a
President will do anything to get reelected.
Ms. Mucarsel-Powell. Thank you. And I want to show you one
more example from the President's chief of staff when asked
about the President's demands of the Ukrainian President.
[Video played.]
Ms. Mucarsel-Powell. Professor Karlan.
Ms. Karlan. I think that Mr. Mulvaney is conflating or
confusing two different notions of politics. Yes, there is
political influence in our foreign affairs. Because President
Trump won the election in 2016, we've exited climate accords,
we've taken a different position on NATO than we would have
taken had his opponent won.
But that's different than saying that partisan politics in
the sense of electoral manipulation is something that we need
to get over or get used to. If we get over that or we get used
to that, we will cease to become the democracy that we are
right now.
Ms. Mucarsel-Powell. Thank you. And I think that that is
our greatest fear and threat. And I don't think that anyone is
above the law. The Constitution establishes that. This type of
behavior cannot be tolerated from any President, not now, not
in the future.
And I yield back.
Chairman Nadler. The gentlelady yields back.
That concludes--I'm sorry, Ms. Escobar is recognized.
Ms. Escobar. Thank you, Chairman.
Professors, thank you so much for your testimony and time
today. Many facts, including the President's own words in that
famous phone call, have been laid out before our very eyes and
ears for months, despite the President's repeated efforts at a
cover-up. But it appears that some have chosen to ignore those
facts.
What we've seen today from those who choose to turn a blind
eye is not a defense of the President's actions, because,
frankly, those offenses are indefensible. Instead, we've seen
them attack the process and attempt to impugn your integrity.
For that I am sorry.
Now to my questions. Some have opined that instead of
considering impeachment, we should just let this pass and allow
the people to decide what to do next or what to do about the
President's behavior in the next election.
The Framers of our Constitution specifically considered
whether to just use elections and not have impeachment and
rejected that notion. One statement from the Framers really
stuck with me and it's up on the screen.
George Mason asked: 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?
Professor Feldman, I have two questions for you. Briefly,
can you please explain why the Framers decided that a corrupt
executive could not be solved through elections, and can you
tell us why impeachment is the appropriate option at this
point, considering all the evidence Americans have seen and
heard, rather than just letting this be decided in the next
election?
Mr. Feldman. The Framers understood human motivation
extremely well, and they knew that a President would have a
great motive to corrupt the electoral process to get reelected.
And that's exactly why they thought that it wasn't good enough
to wait for the next election, because the President could
cheat and could make the next election illegitimate. That's why
they required impeachment. And if they couldn't impeach a
corrupt President, James Madison said that could be fatal to
the republic.
The reason that it's necessary to take action now is that
we have a President who has, in fact, sought to corrupt the
electoral process for personal advantage. Under those
circumstances, the Framers' remedy of impeachment is the only
option available.
Ms. Escobar. Thank you. I want to play two clips, the first
of President Nixon and the second of President Trump.
[Video played.]
Ms. Escobar. Two Presidents openly stating that they are
above the law.
Professor Karlan, what happens to our republic, to our
country if we do nothing in the face of a President who sees
himself above the law, who will abuse his power, who will ask
foreign governments to meddle in our elections, and who will
attack any witness who stands up to tell the truth? What
happens if we don't follow our constitutional obligation of
impeachment to remove that President from office?
Ms. Karlan. We will cease to be a republic.
Ms. Escobar. Thank you.
I represent a community that a little over a decade ago was
marred by corruption at the local government level. There was
no retreat into a partisan corner or an effort by anyone to
explain it away. We also didn't wait for an election to cure
the cancer of corruption that occurred on our watch. We were
united as a community in our outrage over it. It was
intolerable to us, because we knew that it was a threat to our
institutions, institutions that belong to us.
What we face today is the same kind of test, only one far
more grave and historic. From the founding of our country to
today, one truth remains clear: The impeachment power is
reserved for conduct that endangers democracy and imperils our
Constitution. Today's hearing has helped us to better
understand how we preserve our republic and the test that lies
ahead for us.
Thank you, Mr. Chairman, I yield back my time.
Chairman Nadler. The gentlelady yields back.
That concludes the testimony under the 5-minute rule. I now
recognize the ranking member for any concluding remarks he may
have.
Mr. Collins. Thank you, Mr. Chairman. Well, today has been
interesting, I guess, to say the least. It has been--we have
found many things. In fact, three of our four witnesses here
today alleged numerous crimes committed by the President, and
at times it seemed like we were even trying to make up crimes
as we go, well, if it wasn't this, well, it was the intent to
do it.
It went along that--it was interesting today as I started
this day and I'm going to come back to it now. As much as I
respect these who came before us today, this is way too early,
because we've not, as a committee, done our job. We've not as a
committee come together, looked at evidence, taken fact
witnesses, put people here in front of us under oath to say,
what happened, and how did it happen, and why did it happen?
We're taking the work of the Intel Committee and the other
committees. We're taking it at seemingly at face value. And I
will remind all that the chairman even is the biggest proponent
of this not happening in his earlier statements almost 20 years
ago when he said: We should not take a report from another
entity and just accept it; otherwise, we are a rubber stamp.
Now, to my Democratic majority, they may not care, because,
as I said before, this is about a clock and a calendar, a clock
and a calendar. They're so obsessed with the election next year
that they just gloss over things. In fact, what is interesting
is, as I said earlier, three of the four witnesses allege
numerous crimes committed by the President. However, during the
Intel Committee hearings, none of the fact witnesses identified
a crime. If you're writing about this, that should alarm you.
So this impeachment narrative being spun by the majority is
a fake one. It's the majority spinning 3 percent of the facts
while ignoring 97 percent of the other. In fact, Professor
Turley earlier said today impeachment needs proof, not
presumptions. We have one of the fact witnesses in the Intel
Committee, I presumed that was what was going on, Mr. Sondland.
You know what is happening here today is also we found out
today--I thought it was really interesting. This is the
Judiciary Committee, but we also found out something today,
that facts don't matter. In fact, facts don't matter unless we
can fit those facts to fit the narrative we want to spin before
this committee and the American people. If they don't matter,
we also heard one of the witnesses state today that it doesn't
matter if aid was released or not.
Of course, it matters, but, unfortunately, only one of the
many facts ignored by the majority. They're ignoring a ton of
substantive facts that matter.
It apparently doesn't matter to the Democrats that
Ambassador Volker, the former Special Envoy to the Ukraine,
made clear in his testimony there was no conditionality on the
White House meeting or the aid. The Democrats and their
witnesses haven't mentioned that, because it's unhelpful to the
narrative they're spinning.
It apparently doesn't matter that to the Democrats in the
majority here that the President did not condition his aid on
an investigation. In fact, Mr. Sondland's statement, to the
contrary, was presumption. It was right here in this room he
called it a guess, right where you're sitting. Called it a
guess, a presumption. It's what he thought.
God forbid if we walk into our courtrooms or in our
proceedings now and find somebody guilty of something we're
calling a crime, and we walk into court now and all of a
sudden, well, I thought it was. The witness said, I presumed it
was. God forbid this is where we're at.
But, you know, we've also heard today that you can make
inference, though. It's okay if you're just inferring. I don't
know about the professors here and for those of us in court on
both side of the aisle, I've never heard anyone go in and hear
a judge say, just infer what you think they meant and that will
be enough. It's not inference.
You know, it probably doesn't matter that the President
didn't condition a meeting on an investigation. He met with
Zelensky with no preconditions. Zelensky didn't even find out
about the hold on the aid until a month after the call when he
read it in Politico. The aid was released shortly thereafter
and Ukraine didn't have anything to do to get the aid released.
Not only was the aid released, but lethal aid was given as
well.
And if you think that doesn't matter, there were five
meetings between the aid--the time the aid was stopped and the
time the aid was released, and in none of those meetings
between Ambassadors and others, including the Vice President
and Senators, none of that was ever connected to a promise of
anything on the aid. Nothing was ever connected. Five times.
And two of those were after President Zelensky learned that aid
was being held.
Tell me there's not a problem here with the story. That's
why fact witnesses aren't here right now. The evidence against
the President is really about policy differences. In fact,
three of the Democratic star witnesses, Hill, Taylor, and Kent,
weren't even on the call. They read transcripts like everyone
else.
On July 26, Zelensky met with Volker and Sondland and made
no reference to quid pro quo or hold on aid. They met several
more times, no references. But none of those are in--none of
these inconvenient facts or so many other inconvenient facts
matter to the majority.
Moreover, we don't even know what if additional hearings we
will have to address other facts. This is the part that bothers
me greatly. It is something we have seen from January of this
year. No concern about a process that works, but simply a
getting to an end that we want.
You know, I agree with Professor Feldman. He may find that
strange, but I do agree with you on something. It's not his job
to assess the credibility of the witnesses, it is this
committee's job. And I agree. But this committee can't do our
jobs if none of the witnesses testify before our committee,
even ones that we have talked about calling today and the
majority has said we don't want. To do that, we still don't
have an answer on what this committee will do once this hearing
ends.
The committee received Chairman Schiff's report yesterday,
but we still don't have the underlying evidence. The rules even
set up by this body are not being followed to this day, but yet
nobody talks about it on the majority side. The witnesses
produced by Chairman Schiff and the American people talked
about their feelings, their guesses, their presumptions. But
even though the facts may not matter to the majority, 97
percent of the other facts do matter to the American people.
So my problem is this: As the ranking member of this
committee, one of the oldest, most should be fact-based, legal-
based committees we have here where impeachment should have
been all along, I have a group of Members who have no idea
where we're headed next. I bet you, though, if I ask the
majority Members outside the chairman, they don't have a clue
either, very much one.
Because if they have it, they should share it, because this
is not a time to play hide the ball. This is not a time to say,
we're going to figure it out on the fly. You're talking about
overturning 63 million votes of a President duly elected who is
doing his job every day and, by the way, was overseas today
while we're doing this, working with our NATO allies.
So the question I have is, where do we head next? We've
heard this ambiguous presentation, but here's my challenge.
I've already been voted down and tabled today. Mr. Schiff
should testify. Chairman Schiff, not his staff, must appear
before this committee to answer questions about the content of
his report. That's what Ken Starr did 20 years ago and history
demanded.
I told the chairman just a while ago and a couple weeks ago
when we were doing a markup, I said, Mr. Chairman, the history
lights are on us. It is time that we talk and share how we're
going forward. I'm still waiting for their answers.
So, Mr. Chairman, as we look ahead, as the Democratic
majority promised that this was going to be a fair process when
it got to Judiciary for the President and others. The
President--and you may say he could have come today. What would
have this done? Nothing. There's no fact witnesses here,
nothing to rebut. In fact, it's been a good time just to see
that really nothing came of it at the end of the day. So why
should he be here?
Let's bring fact witnesses in. Let's bring people in.
Because as you said, Mr. Chairman, you said, your words, we
should never on this committee accept an entity giving us a
report and not investigate it ourselves. Undoubtedly, we're
well on our way to doing that, because of a calendar and a
clock.
So, Mr. Chairman, I know you're about to give a statement,
and they've worked on it and you've worked on it very hard I'm
sure, but I want--before you gavel this hearing, before you
start your statement, before you go any further, I would like
to know two things: Number one, when do you plan on scheduling
our minority hearing day?
And, number two, why or with--when are we actually going to
have real witnesses here that are fact witnesses in this case?
When? Or what you said many years ago has faded, just like the
leaves in fall. I don't really care anymore that somebody else
gives us a report.
Undoubtedly, Chairman Schiff is chairman over everything
with impeachment and he doesn't get to testify. He's going to
send a staff member. But I don't even know if we're going to
have a hearing past that to figure out anything that's been
going on.
So my question that I started out today is, where is
fairness? It was promised. It's not being delivered. The facts
talked about were not facts delivered. This President, as facts
were given, did nothing wrong, nothing to be impeached, and
nothing for why we're here.
And in the words of one of our witnesses, Mr. Turley, if
you rush through this, you do it on flimsy grounds, the
American people will not forget the light of history.
So today, before you give your opening statement--your
closing statement, before you get to this time, my question is
is will you talk to this committee? You're chairman. You hold a
very prestigious role. Will you let us know where we're going?
Are we going to adjourn from here after you sum up everything,
saying that they all did good and go out from here, we're still
wondering.
The lights are on. It's time to answer the question.
I yield back.
Chairman Nadler. The gentleman yields back.
And I want to before my closing statement acknowledge that
I received a letter today requesting a minority day of
testimony under rule XI. I have not had a chance to read the
letter, but look forward to conferring with the ranking member
about this request after I have had a chance to review it.
Mr. Collins. Mr. Chairman, I have a question. You can't
review a letter. That is a demand that we have.
Chairman Nadler. The gentleman is not recognized.
Mr. Collins. There's nothing for you to review.
Chairman Nadler. I now recognize myself for a closing
statement.
George Washington's farewell address warns of a moment when
cunning, ambitious, and unprincipled men will be enabled to
subvert the power of the people and to usurp for themselves the
reins of government.
President Trump placed his own personal and political
interests above our national interests, above the security of
our country, and, most importantly, above our most precious
right, the ability of each and every one of to us participate
in fair elections, free of corruption.
The Constitution has a solution for a President who places
his personal or political interests above those of the Nation:
The power of impeachment. As one of my colleagues pointed out,
I have in the past articulated a three-part test for
impeachment. Let me be clear. All three parts of that test have
been met.
First, yes, the President has committed an impeachable
offense. The President asked a foreign government to intervene
in our elections, then got caught, then obstructed the
investigators twice. Our witnesses told us in no uncertain
terms that this conduct constitutes high crimes and
misdemeanors, including abuse of power.
Second, yes, the President's alleged offenses represent a
direct threat to the constitutional order. Professor Karlan
warned, drawing a foreign government into our election process
is an especially serious abuse of power, because it undermines
democracy itself. Professor Feldman echoed, if we cannot
impeach a President who abuses his office for personal
advantage, we no longer live in a democracy. We live in a
monarchy or under a dictatorship.
And Professor Gerhardt reminded us, if what we are talking
about--if what we are talking about is not impeachable, then
nothing is impeachable. President Trump's actions represent a
threat to our national security and an urgent threat to the
integrity of the next election.
Third, yes, we should not proceed unless at least some of
the citizens who supported the President in the last election
are willing to come with us. A majority of this country is
clearly prepared to impeach and remove President Trump.
Rather than respond to the unsettling and dangerous
evidence, my Republican colleagues have called this process
unfair. It is not. Nor is this argument new. My colleagues on
the other side of the aisle, unable to defend the behavior of
the President, have used this argument before.
First, they said that these proceedings were not
constitutional because we did not have a floor vote. We then
had a floor vote. Then they said that our proceedings were not
constitutional because they could not call witnesses.
Republicans called three of the witnesses in the live hearings
of the Intelligence Committee and will have an opportunity to
request witnesses in this committee as well.
Next, they said that our proceedings were not
constitutional because the President could not participate. But
when the committee invited the President to participate in this
hearing, he declined.
The simple fact is that all these proceedings have all the
protections afforded prior Presidents. This process follows the
constitutional and legal precedents. So I am left to conclude
that the only reason my colleagues rushed from one process
complaint to the next is because there is no factual defense
for President Trump.
Unlike any other President before him, President Trump has
openly rejected Congress' right as a coequal branch of
government. He has defied our subpoenas, he has refused to
produce any documents, and he directed his aides not to
testify.
President Trump has also asked a foreign government to
intervene in our elections, and he has made clear that if left
unchecked he will do it again. Why? Because he believes that,
in his own words, quote, ``I can do whatever I want,'' unquote.
That is why we must act now. In this country, the President
cannot do whatever he wants. In this country, no one, not even
the President, is above the law.
Today we began our conversation where we should, with the
text of the Constitution. We have heard clearly from our
witnesses that the Constitution compels action. Indeed, every
witness, including the witness selected by the Republican side,
agreed that if President Trump did what the Intelligence
Committee found him to have done after extensive and compelling
witnesses from the Trump administration officials, he committed
impeachable offenses.
While the Republican witness may not be convinced that
there is sufficient evidence that the President engaged in
these acts, the American people and the majority of this
committee disagree.
I also think that the Republican witness, Professor Turley,
issued a sage warning in 1998, when he was a leading advocate
for the impeachment of Bill Clinton. He said, quote, ``if you
decide that certain acts do not rise to impeachable offenses,
you will expand the space for executive conduct,'' close quote.
That was the caution of Professor Turley in 1998 in the
impeachment of President Clinton. That caution should guide us
all today. And by any account, that warning is infinitely more
applicable to the abuses of power we are contemplating today,
because, as we all know, if these abuses go unchecked, they
will only continue and only grow worse.
Each of us took an oath to defend the Constitution. The
President is a continuing threat to that Constitution and to
our democracy. I will honor my oath, and as I sit here today,
having heard consistent, clear, and compelling evidence that
the President has abused his power, attempted to undermine the
constitutional role of Congress, and corrupted our elections, I
urge my colleagues, stand behind the oath you have taken. Our
democracy depends on it.
This concludes today's hearing.
Mr. Collins. Mr. Chairman, I have one thing.
Chairman Nadler. For what purpose does the gentleman seek
recognition?
Mr. Collins. Thank you, Mr. Chairman.
Pursuant to rule--pursuant to committee rule 8, I am giving
notice of intent to file dissenting views to the committee's
report on constitutional grounds for Presidential impeachment.
Chairman Nadler. Noted.
This concludes today's hearing. We thank all of our
witnesses for participating. Without objection, all members
will have 5 legislative days to submit additional written
questions for----
Mr. Collins. We have an unanimous consent request. We have
an unanimous consent request.
Chairman Nadler. Too late.
Mr. Collins. Too late? It's too late for a unanimous
consent request?
Chairman Nadler [continuing]. The witnesses or additional
materials for the record.
Without objection, the hearing is adjourned.
[Whereupon, at 6:32 p.m., the committee was adjourned.]
APPENDIX
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