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CNN Live Event/Special
House Judiciary Committee Holds First Impeachment Hearing; UNC Constitutional Expert Gerhardt: Trump Has Committed Several Impeachable Offenses; Constitutional Law Expert Karlan: Trump's Conduct Is "A Key Reason" Constitution Provides Impeachment Power; Constitutional Law Expert Feldman: Based on Evidence & Testimony, Trump Has Committed Impeachable Offense; Constitutional Expert Turley: No "Clear Criminal Act" But High Crimes & Misdemeanors Can Include Non-Criminal Acts. Aired 12-1p ET
Aired December 04, 2019 - 12:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[12:00:00]
EISEN: Professors, we've talked about abusive 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?
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 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.
EISEN: Professor Karlan, do you agree?
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.
EISEN: We will accept your opinion as a citizen. Professor Feldman?
FELDMAN: The obstruction of Congress is a problem because it undermines the basic principle of a 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. It -- 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.
EISEN: And sir, in forming your opinion, did you review these statements from President Trump?
(BEGIN AUDIO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, we're fighting all the subpoenas.
Then I have an article two, where I have the right to do whatever I want as president.
(END AUDIO CLIP)
FELDMAN: I did, and as someone who cares about the Constitution, the second of those, in particular, struck a kind of horror in me.
(LAUGHTER)
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 nine, 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?
GERHART: I read that report last night after I had submitted my statement, but I watched and read all the transcripts that were available. The report that was issued reinforces everything else that came before it, so yes.
EISEN: So, we've talked first about abusive 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?
GERHARDT: Yes, I have.
EISEN: And what is your opinion, sir? GERHARDT: Based on -- so I've come here like every other witnesses 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.
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?
GERHARDT: Yes.
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?
[12:05:00]
GERHARDT: That is correct.
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.
GERHARDT: That's correct.
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?
GERHARDT: Yes, sir. I did.
EISEN: And you also point to pardon dangling and witness tampering as the Paul Manafort and Michael Cohen, former campaign officer, former personal lawyer of the president?
GERHARDT: Both individually and collectively, these are evidence of obstruction of justice.
EISEN: How series is that evidence of obstruction of justice, sir?
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's been put forward by Mr. Mueller that's in the public record is very strong evidence of obstruction of justice.
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 patter?
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 -- 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 pacts. 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 not 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.
EISEN: Professor Feldman, you were somewhat of an impeachment skeptic at the time of the release of the Mueller Report. Were you not?
FELDMAN: I was.
EISEN: What's changed for you, sir?
FELDMAN: What changed for me was the revelation of the July 25 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 someday 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.
EISEN: Thank you. I yield my time back to the Chairman.
NADLER: And my time has expired. I yield back. The -- before we -- before I recognize the Ranking Member for his round -- first round of questions, the Committee will stand in a 10-minute humanitarian recess.
(LAUGHTER)
I ask everyone in the room to please remain seated and quite 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.
[12:10:00]
COLLINS: Good luck.
NADLER: Once the witnesses have left the hearing room -- at this time, the Committee will stand in a short recess.
JAKE TAPPER, CNN HOST: Good afternoon and with that gavel coming down, I'm Jake Tapper in Washington. You're watching special coverage of this historic day in our nation's Capital. The House Judiciary Committee is holding its first impeachment hearing dealing with President Donald Trump and the Ukraine scandal.
House Judiciary Committee Chairman Jerry Nadler, Democrat of New York, just called a short break. The Committee which will be responsible for drafting potential articles of impeachment against the President is hearing right now from four legal scholars, four constitutional experts three of those witnesses called by Democrats. They testified that President Trump's actions do indeed rise to the level of an impeachable offense or offenses.
The fourth called by Republicans disagreed. We have a lot to talk about. Let's start with CNN's Chief Legal Analyst Jeffrey Toobin. And Jeff, what do you make of what we heard so far? A pretty - if you'll accept my apologies ahead of time for people in the legal profession pretty dry stuff compared to the witness testimony that we heard prior?
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Really? I love this stuff. Are you kidding? I hope this goes all day. No. It is a little abstract. But I think there are certain principles that have come through even with Jonathan Turley who is the Republicans' witness today.
The first is that an impeachable offense does not have to be a crime. The words in the constitution high crimes and misdemeanors do not refer to a federal criminal code, because there was no federal criminal code when the constitution was promulgated at the end of the 18th century.
TAPPER: And this is a lot about what the framers intended and why they wrote what they wrote.
TOOBIN: Right. So I think that's a message that is undoubtedly true. I don't think there's any dispute about that. Since most people are not following - who are not students of the constitution, it may be unfamiliar to them. So that is an important one.
The other point is the issue of abuse of power. Did the President through his interactions with Ukraine abuse his power by conditioning aid on political advantage? Now, this is where you start to see differences between the Democrats and Republicans. The three witnesses called by the Democrats all say yes. And Jonathan Turley for the Republicans I think says no although he didn't really engage on that much. And the other--
TAPPER: He said there was insufficient evidence.
TOOBIN: Insufficient evidence but he didn't really talk about any of the evidence. The other point is the issue of obstruction of Congress. Did the President by refusing to allow witnesses to testify, produce any documents, e-mails, texts, did he commit an impeachable offense by doing that?
There I think the three witnesses for the Democrats were probably at their best there, because they were talking about how the system of separation of powers can't really exist unless one branch that has the impeachment power can do an actual investigation. So I think that's what we learned and I hope it goes--
TAPPER: So we're going to keep talking to the legal team but I want to get some political analysis on this first because we've seen now some tweets and some reaction from people associated with the Trump campaign. Trump Campaign Communications Director Tim Murtagh saying that the four legal experts are basically like a liberal MSNBC legal panel. You've seen Congressman Lee Zeldin one of the President's strongest supporters calling them elitist anti-Trump. What's your take on the politics of this?
DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Well, I think regardless of their political stance, just the notion of having four academics in the broader goal that Democrats have to pull the public along on the idea of impeachment, I can't see it changing much.
They had, as you mentioned, the blockbuster hearings already in another Committee with the actual witnesses, the people who were talking about what happened. And this is fascinating, not just for legal nerds, maybe political nerds too.
TAPPER: You can join our team any time.
BASH: Thank you. You're so gracious. The fact is that on that broad idea, which is important if there is any chance, as slim as it is, for the Democrats to pull over even one Republican in the House, never mind when it gets to a trial in the Senate, this is interesting, it is fascinating, not moving when it comes to public opinion.
[12:15:00]
GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, I think we also got the clear road map to what the articles of impeachment are going to be, which would be abuse of power, bribery, obstruction of Congress and obstruction of Justice. Those are the questions that Norm Eisen was asking of the legal scholars and he was getting clear and direct answers from the three who happened to agree with him on his side of this issue. But I do think we learned some really interesting things about the framers of the constitution. I know history can also be dry to some people, but I thought first of all Professor Karlan was very effective, number one, when she chastised Congressman Collins, who--
TAPPER: The Ranking Republican.
BORGER: The Ranking Republican when he made the case, oh, you probably haven't had the time to read all of this. And she said I'm insulted by that, of course I have. As if she, a scholar, would appear before Congress.
TAPPER: Let's play that sound bite right now.
BORGER: Okay.
(BEGIN VIDEO CLIP)
KARLAN: 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 would 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.
(END VIDEO CLIP)
TAPPER: You see there in her fire that why some people consider her to be the elite of the left.
BASH: And she spoke English.
BORGER: Right. And it was sort of how dare you insult me and how dare you insult the rest of us? We're scholars. We're not members of Congress. We actually read the things we're supposed to read before we testify.
But she also made another point which I really wasn't aware of the rest of you may be which is why the framers of the constitution said that you can serve in government in any job including Secretary of State if you're naturalized - you're a natural born citizen except for one job, which is the President of the United States. You have to be a natural born citizen. The reason for that - I knew the first part but the reason for that is that because they were so worried about foreign influence. I didn't know that.
TAPPER: Do you see this moving the needle at all in Yorkshire County in the middle of Pennsylvania? I mean, is this having any effect on voters?
JOHN KING, CNN CHIEF POLITICAL ANALYST: We have not seen that so far. To your point, no offense to the legal team, the witness testimony laying out the facts, those were very compelling witnesses and it moved the dial none. Will making the case, will having these very smart attorneys saying especially on the ones on Democratic side saying go back to the constitutional convention, got back to the framers, go back to the federalist papers, this is what they were worried about.
Even a - of foreign influence cannot happen, maybe. But you do see Jake, the very proof that nothing is moving in that room and even the attack by Professor Karlan, she was insulted understandably so, on the Republican member, Republicans will take that as liberal witness attacks Republican Congressman. These procedural votes, we can call them stunts if we want.
The Republicans keep forcing procedural votes. What does it do? It gets every Republican member on that Committee to stay in the Republican tribe, every Democratic member to stay in the Democratic tribe which is what the Republicans want. This is they're not going to argue the facts. They argue the facts really they make up their own facts. They just want to keep the votes where they are.
TAPPER: So let's talk about the opinions right now. Carrie and Ross I want to get your views because I'm not a lawyer. But it does seem like the three experts who are calling for impeachment are doing so for somewhat different reasons. Each one of them has a different interpretation.
Professor Karlan suggested that President Trump abused his office, betrayed the national interest and tried to corrupt the electoral process. She's an expert on voting. Professor Gerhardt said the President committed several impeachable offenses including bribery, abuse of power and soliciting personal favor from a foreign leader to benefit his political campaign obstructing Congress and obstructing Justice.
And then you have Noah Feldman from Harvard Law School basically focusing on abuse of the office of Presidency because he was using his office to seek a personal political and electoral advantage over Former Vice President Biden. Am I wrong that they all are kind of bringing different arguments to this?
CARRIE CORDERO, CNN LEGAL ANALYST: I think all three of them are asserting that there is an abuse of the President's authority. I do think that Professor Gerhardt has focused his remarks more on obstruction and the importance of checks and balances. So he's trying to explain why the President's insistence that witnesses not come before Congress and why the administration's not handing of documents President's constitutes obstruction and why that is a constitutional problem, because then the President would not be accountable to anyone.
[12:20:00] CORDERO: So I think they are bringing different perspectives. I really am intrigued by Professor Karlan's emphasis on the relevance to elections in particular and why the facts in this particular impeachment are so directed towards the potential corruption of the electoral process because the argument she's making is that the electoral process is so central to the functioning of our democracy, and so then if the President took actions which she believes he did that subverts those elections, that is a foundational problem that represents his abuse of office. And I just think it's really interesting argument that she is articulated.
TAPPER: And I've heard Democrats make this argument Ross, which is Republicans argue, hey, if you don't like the President's behavior, there's an election coming up in less than a year, resolve it there. And Democrats say the President is being impeached for trying to cheat in that election, yet you want us to rely upon that election to settle this.
ROSS GARBER, CNN LEGAL ANALYST: I think it's one of the questions that we haven't seen so far that will be interesting to ask each of the panelists including Professor Turley, is whether and to what extent if at all the fact that we have an election coming up matters.
I think there are arguments on both sides. I think we may hear from Professor Turley maybe that the framers took into account the fact that we were going to have relatively quick elections. That was one of the main things that distinguished the President from a king, but that you needed an impeachment procedure in case something happened in between elections that required the protection of the country and the removal of the President.
And the fact that we do have an election coming up relatively soon introduces a dynamic into the equation where one question that will be asked - probably should be asked is can we wait until the next election? Can we wait to let the voters decide because into the constitution that's what the preferable method, or is this such an urgent and serious issue that we need to act now?
In a way, that undercuts Professor Turley's argument that we're all moving too fast here. I agree with a lot of what Professor Turley said. I don't agree with that. I think an impeachment actually should be a very quick effort to get the facts, to get an understanding, because it's not something that you just play out over a lot of time.
BORGER: Well, Professor Feldman answered that question and said you can't wait because this would affect the President's own reelection. What the President was trying to do was affect his own reelection. That is why the election itself becomes irrelevant. But Turley in his written statement says the fact that Democrats are not willing to wait for the court system to play this out, he called it tragically moronic. So I think what he is going to say.
TAPPER: Indeed, yes.
BASH: There's one other thing that if there is any movement for public opinion and/or members of Congress to move, this could be a salient point that almost all, the three on the left of your screen made which is the White House defense and the Republican defense on the Hill is it didn't happen. So what? It didn't even happen.
The money was released. He didn't hold it up. And each of them gave very specific examples, metaphors, what have you, about the fact that that doesn't matter. The attempt itself is the impeachable act, is one of the quotes which if you are to trust in them as academics who understand what the founders were really getting at that could undercut the Republican argument.
TAPPER: And John King, one of the things that we've heard from Republicans on Capitol Hill is not only that the money was released, but also certain things that don't really pass the smell test such as President Trump is really truly worried about corruption. This is a man obviously a President who's Former Campaign Chair, Deputy Chair, National Security Advisor, lawyer, his campaign advisors other are either in jail or facing prison.
So the questions about his curiosity and opposition to corruption I think are at least questionable. But Republicans are more unified now against impeachment, I think more so than I've ever seen them throughout the entire Trump era, including from the moment candidate Trump came down that escalator until now. I've never seen them this unified.
KING: The proximity to the election which has some Democrats nervous should will be doing this cause, the proximity to the election is keeping Republicans so close to the President because if they turn on him, they know he will turn on them number one.
The other issue is if there is decedents in the Republican base the President's matted his own Republicans or Republicans now turn on the President.
[12:25:00]
KING: Trump voters don't come. Trump voters don't - here, primary challenges can happen. The closer we get to the election they have now decided this is Trump's Republican Party there is no room, there is no room for anybody else in Trump's Republican Party. They figured that out so they are stuck with him, if you will.
Interestingly to the point it will be interesting to go forward to see how many Republicans say the President was perfect, the President did nothing wrong. Even Jonathan Turley the Republican witness here did not say that.
TAPPER: No.
KING: He said the call was far from perfect. But you haven't heard from fact witnesses. What's your rush? You're trying to do this too fast. You're racing the process. He didn't say there's no here, there is nothing there. He just said you're not doing this right.
But the Republican loyalty, you're right it has increased. The fact that even the retiring Republicans are now putting on the table the possibility of splitting, we'll see if it happens, but there's zero indication right now that any Republican is going to leave the President in the House and really zero indication that we're going to see that in the Senate. That doesn't mean there are four or five we do have to watch as this builds but that is - 90 percent of Republicans are with the President out in the country. If that stays those lawmakers who are on the ballot next year are not going to move.
TAPPER: And in fact just to prove your point, even House Republicans on the Intelligence Committee who expressed misgivings about President Trump's call, Congressman Turner from Ohio, Congressman Hurd from Texas signed off on the Republican Intelligence Committee report which was basically pages that just said President Trump is perfect and he's done nothing wrong.
KING: That report belongs in the fiction section. You can argue and I'm looking forward to the argument about is this an impeachable offense? Is that with the election so close should we be doing this? That's a legitimate argument that I think we will hear more in the Senate. We will not hear it in the House, they're just again, it is an alternative universe when it comes to facts.
CORDERO: It's also worth just focusing on a little bit of the irony of Professor Turley's arguments. One of his main argument seems to be that the Congress should be taking more evidence, should be taking more witnesses, should be gathering more documents and to produce more of a complete record.
Many of the potential articles of impeachment will focus on the President's obstructive acts precisely because the administration has not produced witnesses and has not produced documents. It's a little bit of a circular argument in that it's hard to complain about the lack of a record when the administration has been obstructive in not helping to create that evidence.
TAPPER: In fact, if anybody out there wants to go online and read the House Intelligence Committee's impeachment report, the one from the Democrats go to page 217 and you'll see page after page of lists of documents that the administration refused to turn over, including ones seemingly - as Former Ambassador Bill Taylor's notebook in which he like to little notes. That was not allowed to be--
GARBER: I think the Republican retort to that will be that every President since Washington has asserted some manner of executive privilege. They'll note that the previous attorney general - the attorney general under the Obama Administration had actually been held in criminal contempt of Congress.
TAPPER: Eric Holder.
GARBER: Eric Holder. And that we shouldn't and can't start impeaching Presidents for asserting privileges and immunities especially when for example the White House Counsel agrees with that and that it's up to the Democrats to go to court if they don't agree.
TOOBIN: But we have never ever seen any administration, including Richard Nixon while he was under impeachment investigation, including Bill Clinton when he was under investigation issue a blanket refusal to produce no witnesses, to produce no documents, to produce no e- mails, texts.
Yes, it is true that there are legitimate grounds for dispute about each perhaps certain of the documents that the House has sought. But the idea that it is a legitimate exercise of executive authority to shut down cooperation completely--
BORGER: Can I just point out how different this is from the s Mueller report? Where this administration prided itself may be there was a different White House Counsel at the time but we're going to let people testify, we're going to let them talk to Mueller, we're going to provide all the documents.
BASH: And don't think that they're not directly related.
BORGER: Exactly.
KING: Then they read what they said in the Mueller report.
BORGER: Of course they're related because then they read it. Why did we do that? Maybe we shouldn't have done that. So now they're taking the opposite tack and claiming privilege on everything.
TAPPER: And that shows what they actually think about the Mueller report which even though people in the White House and the Republican Party claim the Mueller report clears them. No collusion, no wrong doing et cetera. They know that it's much more damning than that. Let's listen into Chairman Nadler as he calls the Ranking Republican to ask his questions.
[12:30:17] NADLER: -- the Ranking Member or his counsel have 45 minutes to question the witnesses. The Ranking Member.
COLLINS: Thank you, Mr. Chairman. Before I being 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's entitled day of hearings is rarely exercised but it's guards (ph) against the majority abusing its power to exclude competing abuse. 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 we -- prior hearings were sufficient. It's not the Chairman's right to decide whether or what we say or think is acceptable. It is certainly no 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 looking forward to that schedule -- that you getting that scheduled expeditiously.
Moving on, interesting part. Now we hit phase two. 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 two. A phase two is what is problematic here because, as I said in my opening statement, this is one would be and for many one of the most disputed impeachments on just the facts themselves.
What was interesting is we actually 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's unchallenged. And I agree with that, and it should be, and we've had great witnesses here today 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've 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 report 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 not got any of the underlying stuff that came 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 I.C. Inspector General, his testimony is still being held. And there's a quote secret on it or they're holding in classification. 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's 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 is -- we've 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 are now well-rested.
(LAUGHTER)
And you got one question. You were asked a yes-no only 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 (inaudible), 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...
(LAUGHTER)
... in the world, and also for those of you who are worried about I'm uncomfortable, upset, I'm happy (inaudible), but this chair is terrible. I mean, it is amazing, but Mr. Turley, go ahead.
(LAUGHTER) TURLEY: Well, it's a challenge to think of anything I was not able to cover in my robust exchange with the Majority Counsel, but I'd like to try.
(LAUGHTER)
COLLINS: Go right ahead.
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, ands 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 statements has been made 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.
[12:35:00]
The bribery theory being put forward is 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 type, 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 channeling the intent of the framers and that's always a dangerous thing to do. The only more -- the only more dangerous spot to stand in is between Congress and in 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 sorry by Madison, ultimately the framers agreed and then Morris, who was referred to earlier, did say we need to adopt the standard but what was left out was what came afterwards.
What Morris said is that -- that we need to protect against bribery because we don't want anything like what happened with Louis XIV and Charles II. That is 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 is 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 take a 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 is defined by the United States Supreme Court. In a case called McDonnell versus the 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 -- 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 then when some of us note that the Supreme Court has rejected your type of bailamos interpretation, say well, it's just impeachment.
[12:40:00]
We really don't have to prove the elements. That's a favorite mantra and it's sort of 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. If you -- 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 Judiciary Committee agreed that Bill Clinton had committed perjury. That's 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 trapdoor 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 trapdoor crime, waited for him to fire the Secretary of War and then they impeached him. But there's no question 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...
COLLINS: No, you're doing a good job. Go ahead.
TURLEY: I would 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 colleagues 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 had been made to the third article of the Nixon impeachment. Now first of all I want to confess. I've 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's 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 I -- there's this Article II, and he give his overriding interpretation. I share that criticism. You're doing the same thing with Article I.
You're saying Article 1 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 talked about?
[12:45:00]
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 not 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 loose, turn over the material to Congress.
Do you know what that -- what that did for the Judiciary, is it gave this body legitimacy. It wasn't the rodeno (ph) extreme position, that only you decide what information can be produced.
Now recently there's some rulings against President Trump, including a ruling 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's an -- it was 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 the 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 say it just 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.
COLLINS: Let's continue on. Let's unpack what you've been talking about. First of all, the McDonald case, how was that decided? Was that a very split court? Were they really torn about that? That case came out how?
TURLEY: Yes, it came out unanimous. So did a couple of the other cases I site in my testimony, which also refute these criminal theories.
COLLINS: One of the things that you intended (ph) -- that you said also, and I think it would be -- could be summed up in -- I use it sometimes, is what'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 the facts don't matter, that we're also, as you have said, abusing our power as we go forward here in actually looking at what people would deem as an impeachable offense?
TURLEY: I think so. And part of the problem is that, 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.
COLLINS: Mr. Turley, I have a question on that, because you brought up Mr. Obama, 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 or 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, a crime or anything else?
TURLEY: Yes, I think that President Obama has invoked (ph) too broadly, but on the other hand, he has actually released a lot of information. I've been friends with Bill Barr a long time, we disagree on executive privilege. I'm a Madisonian scholar, I tend to favor Congress in disputes. I -- 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's not question about that.
COLLINS: And I think that is something that's, again, not pointed out when you're doing a back and forth like we're doing. The transcript of the call released, the thing that's have been released to the Mueller's, we go back through this, there has been work in progress by this Administration.
[12:50:00]
I think the interesting point that I want us to talk about is two things. Number one, Congress is in abuse of its own power, which has not been discussed here, even internally, were 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've talked about here. Again, I believe we talked about this with the Mueller Report, we talked about this with everything else.
This is one of the fastest -- we're on -- I said this earlier, we're on a clock, the clock and the calendar are seemingly dominating this, is 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 a 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're -- 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?
TURLEY: Yes. Fast and narrow is not a good recipe for impeachment. That's the case with Johnson, narrow was the case with Clinton. The 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 to Johnson was actually the fourth impeachment attempt against Johnson. And actually, the -- 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 to -- it might appear.
COLLINS: And again, let's go back -- I want to go back to something else, and you talk about bribery and I'm going -- Mr. Taylor is going to address a good bit of that, but I want to go back to something that you talked about because it really bothers the perception out there of what's going on here in the disputed transcript -- the call's been laid out there, the President said I wanted nothing for this.
There's all of this exculpatory evidence that was not presented in the last 45 minutes. But there is one thing that's interesting, is it's been reported in the mainstream media and it goes back to your issue of this crimes ladder artist (ph) or what this definition is. Is it house (ph) -- our 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 bribery.
Does that not just feed into more of what you're saying about how where (ph) actually the crime matters and that facts do matter in a case like it, or at least should matter?
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 non-crime. You can. In fact non-crimes have been part of past impeachments; it's just that they've never gone up alone or primarily and as the basis of impeachment. That's the problem here. If you prove a quid pro quo that you might have an impeachable offense. But to go up only on a non criminal case will be the first time in history, so why is that the case? The reason is that crimes have an established definition in case law.
So there's a concrete independent body of law that assures the public that this is not just political. That this is president who did something they could not do. You can't say the president is above the law, if you then say they crimes you accuse him of really don't have to be established.
COLLINS: I think that's the problem right now that many members of this house -- members of this body (ph) and especially the American public are looking at that if you say he'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 was -- 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 2.5 weeks before the discussion of this kind of hearing back then before the hearing actually took place. These are the kind of things that as timing goes I think that the obvious point here is that timing is becoming more of the issue because there -- because the concern has 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 hypothetical's stick to the American public. The problem is their timing, the definition of crimes, the definition of the fact that bribery has be defined by the Supreme Court, is not making their case, it's not fitting what they need to do.
[12:55:00]
The issue that we have to deal with going forward is why the rush, why do we still not have the information from the Intelligence Committee, why is the Inspectors Generals report from the IC (ph) committee being withheld, even in non class -- 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 today's going to be applicable, because both sides matters, and at the end of the day, this is a fast impeachment, the fastest we're seeing, based on disputed facts on crimes or disservices 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.
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 penchant (ph) words in Federalist paper number 65. In advocating for the ratification of the Constitution the Federalist Papers laid out the reasons Madison and Prince Lee Hamilton (ph) 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, harshialities (ph), influence and interest on one side. Where 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?
TURLEY: Certainly that is proven to be the case. It's certainly of the two Impeachments that we have seen. It's also important to know (ph) by the way that we often think that our times are unique. This provision wasn't just written for times like ours. It was written in times like ours. That is these are people that are even more severe that the rhetoric today. You have to keep in mind, Jefferson, referred to the administration of the Federalists as the rain 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 this addition law was. Is 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 lesion that actually can be taken from that period. That the Framers created a standard that would not be endlessly fluid and flexible. And if 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 thing for most of us today is there's so much more rage than reason. You can't even talk about these issues without people saying you must 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.
TAYLOR: Professor Turley, your testimony, you said that when it comes to Impeachment we don't need happy ideological 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. The Democratic leaders pushing Trump's impeachment represent some of the most far left urban coastal areas of the country. The bar graphs here so counties and the height of the bars indicate total votes cast and the color of the bar show the margin of victory for the winner for the 2016 Presidential Election. As you can see the parts of the country represented by there Democratic impeachment leaders voted overwhelmingly for Hillary Clinton during the last presidential election.
Also during the 2016 Presidential Election, lawyer campaign contributions tilted 97% for Clinton, 3% for Trump. And the situation is essentially the same at law schools around the country including those represented on the panel here today.
No 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 were talking about the initiation of the impeachment inquiries. As 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. House Democrats Trump Impeachment drive was subsequently approved only by Democrats -
[13:00:00]
