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Judiciary Committee Holds Impeachment Hearing; Constitutional Law Experts Called By Dems Hammer Trump's Conduct, Testify He Abused His Power. Aired 4-5p ET
Aired December 04, 2019 - 16:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[16:00:00] GAETZ: -- towers of your law school but it makes actual people in this country feel like ...
(CROSSTALK)
KARLAN: When the president calls ...
GAETZ: Excuse me. You don't get to interrupt me on this time. Now, let me also suggest that when you invoke the president's son's 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 can 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 wiretapping a political opponent is an impeachable offense, I look forward to (inaudible) inspector general support because maybe it's a different president we should be impeaching.
NADLER: The gentleman's time is expired. Mr. Cicilline.
CICILLINE: Thank you, Mr. Chairman. Professor Feldman, let me begin with by stating the office. It is not hearsay when the president tells the president of Ukraine to investigate his political adversary, is it? FELDMAN: It is not.
CICILLINE: It is not hearsay when the president then confesses on national television to doing that, is it.
FELDMAN: It is not.
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?
FELDMAN: No, that is not hearsay.
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. Professor Gerhardt, Professor Turley, not withstanding 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 a violation of public trust is enough, end quote. Was Professor Turley write when he wrote that back in 2014.
GERHARDT: Yes, I agree with that.
CICILLINE: OK. Now, next to Professor Karlan. At the Constitutional Convection, Elbridge Gerry said, and I quote, foreign powers will intermeddle in our affairs and spare no expense to influence them. And the response James Madison said that 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.
KARLAN: So the reason that 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.
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 urged 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?
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.
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 governments. We fought and won a revolution over this. Free and fair elections are what separate us from authoritarians all over the world.
[16:05:00]
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 our 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?
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.
CICILLINE: Professor Karlan?
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.
CICILLINE: Thank you.
And with that I yield back, Mr. Chairman.
NADLER: The gentleman yields back.
Mr. Johnson?
M. JOHNSON: 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've 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 three years, they've introduced four different resolutions seeking to impeach the president. Almost exactly two 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 re-election. Even Speaker Pelosi said, famously, last month, that, quote, "It is 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.
[16:10:00]
President (sic) 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 hyper-partisan impeachment is probably one of the most divisive and destructive things that we could possibly do to our American family.
Let me -- let me tell you what I heard from my constituents in multiple town halls and meetings back in my district, just two 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 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? Is 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, six or seven years from now, a decade from now, in the ruins of public liberty that are being created by this terribly short- sighted exercise today, God help us.
I yield back.
NADLER: The gentleman yields back.
Mr. Swalwell?
SWALWELL: Professor Turley is a former prosecutor. I recognize the defense attonry trying to represent their client, especially on that has very little work with in the way of facts. And today you're representing the Republicans in their defense of the president. Professor, you said...
TURLEY: That's not my attention, sir.
SWALWELL: You've aid 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 area - modern era asked the Senate to remove someone for conduct for which he was never charge criminally and the improprietary (ph) of which has never been tested in a court of law, but that's actually 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?
TURLEY: I did, indeed.
SWALWELL: And Judge Porteous was tried 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 the 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 that are 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 were particularly from Ambassador Taylor.
(BEING VIDEO)
AMBASSADOR TAYLOR: These weapons and this assistance allows the Ukrainian military to deter further incursions by the Russians against their own - against Ukrainian territory. If that further incursion, further aggression were to take place, more Ukrainians would die.
(END VIDEO)
SWALWELL: Professor Karlan, does the president's decision to withhold from Ukraine such important official acts the 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?
KARLAN: It relates to the abuse of power. The entanglements with foreign nations is a more complicated - is a more complicated concept for the - for the framers than for us.
[16:15:00]
SWALWELL: And Professor Karlan, I think you'd agree we are a nation of immigrants?
KARLAN: Yes.
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 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 American who left their families and livelihoods to come to a country that represents the rule of law?
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.
SWALWELL: Thank you. And finally, Professor Feldman, Professor Turley has pointed out that we should wait and that we should go to the courts, but you would acknowledge that we've gone to the courts. We've been in the courts for over six 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?
FELDMAN: Yes, sir.
SWALWELL: Thank you. I yield back.
NADLER: Gentlemen yields back. We will - in a moment we will recess for a brief five minutes. First I asked everyone in the room to please 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.
[16:17:33]
JAKE TAPPER, CNN HOST: You have been watching the first public hearing of the House Judiciary Committee.
Welcome to THE LEAD. I'm Jake Tapper.
This hearing which first started at 10:00 a.m. Eastern, getting a little contentious at times, three constitutional law experts called by Democrats made their case to impeach President Trump. The lone Republican called expert, Jonathan Turley, argued that the evidence to impeach is, quote, wafer thin.
Let's talk about all this.
Laura, I want to play some sound from Congressman Ratcliff and Jonathan Turley that has been re-tweeted by President Trump as a game set match.
Let us listen to that sound.
(BEGIN VIDEO CLIP)
REP. JOHN RATCLIFFE (R-TX): So if I were to summarize your testimony, no bribery, no extortion, no obstruction of justice, no abuse of power, is that fair?
JONATHAN TURLEY, CONSTITUTIONAL EXPERT: Not on this record.
(END VIDEO CLIP)
TAPPER: That is a pretty assertive statement by Jonathan Turley to say no extortion, no bribery, no obstruction of justice, no abuse of power.
LAURA COATES, CNN LEGAL ANALYST: It's odd because his 53-page opening statement and much of the testimony has not been that particularly assertive on that point. It is essentially hedging up until that moment in time, saying it's not that it's not there, it is that it is insufficient evidence to prove it at this point and there is ample time for you to develop a sufficient record and go to court to get the order from the court to say that somebody, in fact, is obstructing justice in some way or stonewalling officially.
So, now, he has the perfect sound bite, which is why it's been re- tweeted, that essentially says his whole argument was that you got nothing here. It's a big nothingburger.
But he goes to great lengths over 50 pages to explain that he feels because bribery and the words quid pro quo were often used, that it is about whether or not there was a sufficient official act. If the president of the United States had an official act and that is what he's being pinged on. Now, he's saying no, no, no there is nothing to see here folks and that is a bit disingenuous and, frankly, it belies the record to say there is nothing there.
Now, he could argue sufficiency. That's different. But then you have to be real about this point, Jake. The reason there is a record that may be as he called it wafer thin is because people have been stonewalling and not providing evidence not only from testimony, Bolton, Pompeo and the like, Trump and also emails and also paperwork and documents. So to say it is insufficient, but I won't actually give credit to why it is insufficient is preposterous.
TAPPER: Do you think, Tim, that Democrats should almost call Republicans on the bluff and in the sense they should say, OK, you think the case hasn't been proven but your witness Jonathan Turley says we should be calling more witnesses, then let's agree, we'll do two more weeks, we'll extend this two more weeks, but we all have to agree to subpoena Mulvaney, Pompeo, et cetera?
TIM NAFTALI, CNN PRESIDENTIAL HISTORIAN: Absolutely. This is a great missed opportunity for Democrats, and for all Americans.
What the argument should be that impeachment is such a serious matter, that you want as much evidence as possible. And then it is not up to law professors -- by the way, all four of them, they did really well. But it's not up to them. It's up to the members of Congress.
This should be a deliberative process. What is striking about what we've seen today is that this seems to be a repeat in spirit of the Clinton impeachment more than the Nixon impeachment. And that is because there is -- I don't think there is anybody there who has any experience with the Nixon impeachment whereas in the Clinton era some of them remembered the Nixon impeachment which is far more serious. And it should be more deliberate.
So, yes, what Ambassador Eisen, who's the Democratic majority counsel should have done is ask Professor Turley, OK, Professor Turley, what do you want to know, whom should we ask.
And let me give you a reason why. The Schiff report is magnificent. But there are gaps. They're not gaps that are helpful to the president. They're just gaps.
It would be nice to have someone on the record say that they know for sure the president's mind when the suspension of aid happened. What they can prove is that there is a quid pro quo regarding a meeting in the White House. Not quite as easy to prove that there was a quid pro quo about the security.
Now, I can tell you that having studied presidents, I'm pretty convinced that it was. But you know what? The American people don't spend time studying presidents. They're not professors of public policy. Give them more data.
And when Bolton says no and when OMB doesn't hand over the documents, then at least the Democrats can say to the American people, we tried, we tried to connect those dots, but those are troubling dots as is.
TAPPER: And just moving on with that, building on that, what Tim just said, Jen Psaki, in the House impeachment report that the Intelligence Committee put out, Democrats on the committee, there is page after page, it starts on page 216 if you want to read it, page after page of documents that they tried to get that President Trump, Vice President Pence, Secretary of State Pompeo, secretary of defense, the OMB director, et cetera, et cetera, refused to turn over. I mean, just dozens of the documents.
And they could say would you want to see this, Jonathan Turley. The Republican witness says yes. And then the Republicans are in a tough spot.
JEN PSAKI, CNN POLITICAL COMMENTATOR: They certainly could. And there is -- there was a huge opportunity that this report was put out yesterday. And that was a gift to Jerry Nadler, Congressman Nadler, Chairman Nadler.
Obviously, it is a different focus of this hearing slightly, but there is a lot to work from there, and I think he missed some opportunities to really hold Jonathan Turley's feet to the fire to push on some of the questions, to hold some of his fellow Republicans to account on what you exactly just said, that there are -- the reason we haven't had these high level officials appear is because the White House has been obstructing them from appearing. They haven't been providing documents and they haven't --
TAPPER: Let me just interrupt you for one second because I want to bring our viewers attention to the substantial list.
Democrats have asked for documents related to that infamous July 25th call, the briefing materials prepared for President Trump by Lieutenant Colonel Alexander Vindman. Notes related to the call from key players the White House is refusing to turn over the August 15th presidential decision memo prepared by Vindman, conveying that the aid be released. The NSC staff summaries of conclusions for meetings related to Ukraine, White House review - records review of the hold on the Ukraine aid, which according to "The Washington Post", quote, reveal extensive efforts to generate an after-the-fact justification.
When it comes to U.S. ambassador to the E.U., Gordon Sondland, the administration won't turn over call records between President Trump and Sondland, or emails and messages between Sondland and senior officials such as Mick Mulvaney or national security adviser John Bolton. The vice president, Democrats want to see materials related to the July 25th call that were put in Pence's briefing book that day, the briefing materials prepared for Pence's meeting with Ukraine's president in September 1st, the memo of the conversation from the Pence call with Zelensky on September 18th.
This is a small list, a small excerpt. But like they didn't talk about that at all at this hearing and this is just I got from the report that they issued yesterday.
PSAKI: Right, there was a ton of new information this that report. And they could have discussed that. There was no limitations on what they brought up during their questioning or during their public statements and they didn't take the opportunity to do that.
Now, Adam Schiff and most Democrats feel there is a preponderance of the evidence as written in the report to impeach the president.
[16:25:02]
But it doesn't mean they can't question why Republicans and the White House are obstructing access for the American people to documents and witnesses and other people.
TAPPER: But this isn't just about just convincing House Democrats to vote, right? This is about convincing the country.
Do you think this would have been more effective if at least one of those three experts were a conservative constitutional law expert who supported impeachment? Because they're out there. We've had them on my show.
DAVE URBAN, CNN POLITICAL COMMENTATOR: Obviously, look, that was kind of the line of tactic of the questioning, right? That these experts are all incredibly liberal. If you see what has been -- what they've written, what they made public statements about in the past, they're all not -- they're not centrist by any stretch of the imagination.
TAPPER: Well, certainly Feldman and Karlan are liberal. I don't know if they say anything about Gerhardt.
URBAN: OK, so, from where I sit.
TAPPER: Right, OK.
URBAN: They are extremely liberal.
So they didn't help their case at all by picking people who are kind -- who are on the other team. It doesn't make the case any stronger and as Tim pointed out before, we're talking about comity and separation of powers, some of the documents that you referenced, there are legitimate concerns, legitimate claims of executive privilege.
TAPPER: Sure, but the White House said we're not giving you anything.
URBAN: Right. And so you have to go document by document -- TAPPER: Right.
URBAN: And there is a process -- there's a process by which that takes place and it can't be done in a week and a half in time to get the hearing done. I mean, the White House has said let us look at these things and we can't provide anything. This is like any big major litigation case, you have boxes and tons of files and paralegals going through things.
TAPPER: But they say they're not going to cooperate.
URBAN: They're not going to cooperate, but there's legitimate concerns of executive privilege.
NAFTALI: This is -- sorry.
TAPPER: Go ahead.
COATES: The big thing that -- that was the ranking minority member's real point there, right? There was the calendar and there was the clock. And that was the real reason why this is so urgent.
But let's go back to the whistle-blower complaint and no one wants to bring it up, but the idea, what did the director -- excuse me, the inspector general for the intelligence community find? It was a credible and urgent threat. What have these constitutionally people talking about? You need not wait until either an election or protracted litigation. It is the prerogative of the House and Senate to actually impeach and/or remove a president.
And do you have an urgency especially when the subject matter is about an upcoming election. And so you have that all right here.
But I do totally agree there are missed opportunities and when you could -- when each member of the House Judiciary Committee could have pointed out the notion of there is an urgency and also a reason we can't wait for the courts, because it will be the result of long, protected and there is an urgent matter going on here. They didn't address it or hammer it home but they could do so more, and the American people are well aware, if it is credible and urgent you don't wait.
NAFTALI: I don't know if the American people are well aware that there have been 71 requests.
COATES: Yes.
NAFTALI: You know, Jake just gave us a list -- a short list, 71. This is unprecedented in U.S. constitutional history.
TAPPER: Let me interrupt. You see Noah Feldman, Professor Karlan and Jonathan Turley all taking there, even though they have different views on impeachment. They are -- they have at the table treated each other with respect and even deference at times, more so than the members of Congress treat each other.
I'm sorry, Tim. Go --
NAFTALI: And the reason the 71 matters is that --
TAPPER: Seventy-one requests.
NAFTALI: Requests by the House for documents. The president has turned over not a single document.
Richard Nixon, what he did is he played fast and loose and he wanted the apparent compliance. But at least he understood that he to comply constitutionally.
TAPPER: You had to give something.
NAFTALI: He had to give something.
This president doesn't believe he has to give anything and that is a major challenge for our system, but I don't think the American people understand it because frankly they're busy, they have other things on their mind. This is where the Democrats and centrist Republicans, if they exist, should say these are the holes. It is not a fishing expedition, these are the holes.
And exactly what you were saying earlier, Jake, and then say it, and show the American people, this is what we're looking for and say to President Trump, we want you to have your chance to defend yourself. These are really key holes. He will say no, I suspect, but you at least make this clear.
What is problematic now is there is the impression that it is the election that is rushing the Democrats and not the issue of how long we have to wait for the courts. That I understand. Who knows how long they could take.
But the point is if the American people think that the rush is all about the New Hampshire primary and not about the problems of getting documents from the White House, they're not going to understand the seriousness of this. They're going to see it like a game. This isn't a game.
It is supposed to be a serious deliberate process that isn't supposed to happen very often in our history, and the Democrats have to show the seriousness and sadness that the Democrats showed in 1973 and '74. Look, they didn't like Nixon either but they knew this was tough and it's not a good thing to remove a president via impeachment and trial, but sometimes you need to.
I'm not hearing that from the Democrats. I'm hearing a little bit of glee from some and that's not helpful.
[16:30:00]
URBAN: And, to Tim's point, I think it is reflected in -- you see some polling now that shows it slipping.
The numbers have slipped. It was kind of moving in one direction. And Schiff and the Democrats threw the best they had at the president and this administration. It didn't make a dent. It didn't make a dent.
(CROSSTALK)
URBAN: Jen, it didn't.
(CROSSTALK)
PSAKI: That is not actually accurate.
URBAN: It is accurate.
(CROSSTALK)
TAPPER: It is still at more than 50 percent for impeachment and removal.
(CROSSTALK)
URBAN: Independents.
TAPPER: It still slipped a little, from like 50 percent to 47 percent.
(CROSSTALK)
URBAN: It still slipped. Independents in swing states, where it matters.
(CROSSTALK)
TAPPER: It's in the margin of error.
URBAN: It doesn't matter in California and New York state.
PSAKI: Independent support for impeachment has jumped by almost 20 points since the summer.
TAPPER: Since the summer.
PSAKI: Since the summer.
And, look, what Democrats are looking at are a couple things on the political front. One is that Democrats have coalesced around support for impeachment and support for the handling of it. There's 90 percent of Democrats who support that now.
Independents have moved to support an impeachment. And it's still hovering around 50 percent. They're not delusional. They don't think it's going to be easy in the Senate.
(CROSSTALK)
URBAN: We will watch and see how many Democrats vote when it comes to vote time, if it's 90 percent. We will watch and see how many vote. COATES: I must say, though, am I the only one at the table who feels a little bit odd about the idea that -- I know we have to show the deference, this being a very difficult time in the country.
But it is a constitutional obligation that members of Congress have. So, I understand wanting to convey the gravitas. But members of Congress should not feel as though they have to be apologetic about fulfilling a constitutional duty, any more than the president should feel apologetic for exercising his own things.
And I have to say, the impeachment process is very much, every bit as much about congressional impotence as it is about presidential power.
And so, if you have a separation of powers and co-equal branches of government, both have to have the attitude of a clash of the titans. Otherwise, neither is a titan, and only one stands alone.
And, finally, I know you and I had a -- we were talking about this during the break. Does anyone else have a real issue with the fact that the leadoff question for some of these scholars was about what their campaign donations were about and who they gave to, as if these were fact witnesses whose narrative and lens would be judged by who they voted for?
TAPPER: Well, Tim, let me ask you a question, because this is, what, the fourth impeachment proceeding for a U.S. president in the history of United States?
NAFTALI: Yes. Yes.
TAPPER: Do you think that -- I mean, as a historian, comparing it to the other three, do you think that the case has been made? Or is that outside your wheelhouse? You can say it's outside your wheelhouse.
(CROSSTALK)
NAFTALI: Well, I'm going to -- no, no, no, no.
Look, I -- what I have learned from studying these cases is that is that you have to think in terms of an elected official to answer that question. Law professors will have one standard, and elected officials will have another.
I can tell you that the kind of impeachment I ever want to see is one that brings the country together and that heals wounds. That may sound ridiculous, but it happened. It happened in the Nixon case.
And it happened in the Nixon case despite a lot of passion. People forget how hard it was for Republicans to vote against Nixon. It was very tough. And the Republican leadership only went against Nixon when the smoking gun transcript came out.
But they realized that the American people expected them to be constitutional jurors. And so they didn't say what they thought. They didn't say I'm pro-impeachment before the material was in front of them. They made it clear that there was a deliberative process. I'm sorry
if I gave the impression. I didn't mean they were apologetic.
COATES: I don't think you said that, no.
NAFTALI: But, in any case, I'm not sure I'm hearing that.
TAPPER: All right, let's listen in.
REP. JERROLD NADLER (D-NY): ... Mr. Biggs.
REP. ANDY BIGGS (R-AZ): 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 the -- 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 you to do me a favor. But that is inaccurate.
It was finally clear in that colloquy and I'm going to read it to you, "I would like you to us a favor though because our country has been through a lot." One of you said, well, that -- that's because the president was using royal we.
Here, there 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 isn'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 -- 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 books -- book review -- Review of Books, Mr. Feldman -- Professor Feldman said defamation by tweet is an impeachable offense.
[16:35:00]
And I think of the history of this country, and I think if defamation of 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, you -- and several of you mentioned Mr. Davies (ph) and you talked about the Constitutional Convention. And I -- 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 20th, 1787 -- it wasn't 1789 but, by the way, one of you testified it was 1789. It was in 1787, July 20th, Benjamin Franklin is discussing the impeachment of a Dutch leader. And he talks 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'd 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 -- I look at, also, on a May 17th, 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 just case with the sacking alone. The president had clear legal authority and there were arguably proper, or at least other, reasons put forward for firing him."
And yet, what we have here is this insistence by Ms. (sic) Gerhardt that this should be -- that was impeachable. That is -- that's contained in that article, refer you to it. May 17th, 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 -- 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 -- where -- where 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. You said something like that. I can't quote -- 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.
NADLER: The gentleman yields back.
A little while ago, Mr. Gaetz asked that certain material be inserted into record -- into the record by unanimous consent. I asked for an opportunity to review it. We have reviewed it. The material will be inserted without objection.
Mr. Lieu?
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. And the 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, our commander in chief, is accused of using his office for personal or 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 out of (ph) all of the powerful offenses they could included to list?
[16:40:00]
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 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.
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 at a criminal proceeding. We're not deciding whether to send President Trump to prison. It's 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?
KARLAN: (Off mic) That's correct. I'm sorry. That's correct.
LIEU: Thank you. Yesterday, Scalia Law Professor J.W. Verrett was a life-long Republican, a former Republican Hill staffer and 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 relating to the president's withholding of the White House meeting in exchange for the public announcement of an investigation into his political rival.
(BEGIN VIDEO)
SONDLAND: As I testified previously, Mr. Giuliani's requests were a quid pro quo for arranging a White House visit for President Zelensky.
TAYLOR: By mid-July it was becoming clear to me that the meeting President Zelensky wanted was conditioned on the investigations of Burisma and alleged Ukrainian interference in the 2016 U.S. elections.
(END VIDEO)
LIEU: And I must 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 an announcement of public investigation of his political rival.
(BEGIN VIDEO)
SONDLAND: In the absence of any credible explanation for the suspension of aid, I later came to believe that the resumption of security aid would not occur until there was a public statement from Ukraine committing to the investigations of the 2016 elections and Burisma as Mr. Giuliani had demanded.
(END VIDEO)
LIEU: Professor Karlan, does that evidence as well as the evidence in that record tend to show that the president met the standards for bribery as envisioned in the Constitution?
KARLAN: Yes it does.
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. 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's straight up violates the Federal Election Campaign Act at 52 USC 3101 and oh by the way, that Act is also one reason Michael Cohen is sitting in prison right now. I yield back.
NADLER: The gentleman yields back. Mr. McClintock.
MCCLINTOCK: Thank you Mr. Chairman. Could I begin just with a show of hands? How many on the panel actually voted for Donald Trump in 2016?
KARLAN: I don't think we're obligated to say anything about how we cast our ballots.
(LAUGHTER)
MCCLINTOCK: Just - just a show of hands.
KARLAN: I will not...
MCCLINTOCK: I think you've made your positions Professor Karlan, very clear.
NADLER: The gentleman will suspend and will suspend the clock too.
KARLAN: I have a right to cast a ...
NADLER: You may ask the question...
MCCLINTOCK: Let me rephrase the question. How many of you ...
NADLER: The clock is stopped for the moment. The gentleman may ask the question. The witnesses don't have to respond. The gentleman's time is restored.
MCCLINTOCK: How many of you supported Donald Trump in 2016, a show of hands.
FELDMAN: Not - not raising our hands is not an indication of an answer, sir.
MCCLINTOCK: Professor Turley, this impeachment inquiry has been predicated on some rather disturbing legal doctrines. One Democrat asserted that here say 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, if so facto, that's an obstruction of justice and evidence of guilt. My question to you is what does it mean to our American justice system if these doctrines take root in our country?
[16:45:00]
TURLEY: Well, what concerns me the most is that there are now limiting principles that I can see and some of the definitions that my colleagues have put forward and more importantly some of these impeachable offenses I've only heard about today. I'm not too sure what attempting to abuse office means or how you recognize it. And I'm pretty confident that nobody on this committee truly wants the new standard of impeachment to be betrayal of the national interest. If that is going to be the basis for impeachment or that -- how many Republicans do you think would say that Barak 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.
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 maxim of Louis Carroll's Red Queen, sentence first, verdict afterwards? 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.
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?
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.
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 of the federal government, does it not?
TURLEY: It's commonly expressed that way, yes.
MCCLINTOCK: So if probable cause exists to believe a crime's been committed, does the president have the authority to inquire in to that matter?
TURLEY: Yes, but I have to -- this is where I think 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 (ph) --but contemptible is not synonymous with impeachable.
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 to certify that the government of Ukraine has taken substantial actions to make defense institutional reforms, among other things for purposes of decreasing corruption.
Is the president exercising that responsibility when he inquires in to a matter that could involve illegalities between American and Ukrainian officials?
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 side's account for actions and that's what hasn't been explored.
NADLER: Gentleman's time has expired, Mr. Raskin.
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 anti-monarchical Constitution. Your (inaudible) makes me proud to have spent a quarter century 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 and essentially monarchical argument, he says that Article 2 allows him to do whatever he wants.
[16:50:00]
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?
KARLAN: It blows it out of the water.
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 in to our campaigns to target their rivals and to spread propaganda -- 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?
FELDMAN: I do. Richard Nixon sent burglars to break in to 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.
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 tell 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 avarice and so on.
But when presidents threaten the basic character of our government in the Constitution, that's what 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?
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.
RASKIN: Well second and third, the founders expressed fear that a 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 American's leading election law scholars, what rule 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?
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.
RASKIN: Now any one of these actions alone would be sufficient to impeach the president according to 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?
FELDMAN: Yes.
RASKIN: And Professor Gerhardt?
GERHARDT: Yes sir.
RASKIN: And Professor Karlan?
KARLAN: Yes.
RASKIN: You all agree, OK. And do -- are any of you aware of any other president who has essentially triggered all three concerns that animated the founders?
FELDMAN: No.
KARLAN: No.
GERHARDT: No as well.
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.
NADLER: The gentleman yields back. Ms. Lesko.
LESKO: Thank you Mr. Chair. Mr. Chair I ask unanimous consent to insert in to 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 --
NADLER: Without objection the letter will be entered in to the record.
LESKO: Thank you. During an interview, Mr. Chairman, on MSNBC's Morning Joe, on November 26, 2018 Chairman Nadler outlined a three- pronged test that he said would allow for a legitimate impeachment proceeding. Now, I quote, Chairman Nadler's remarks.
[16:55:00]
And this is what he said, "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 three, 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, 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 votes 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-pronged 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 is 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 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 a political purpose. I think that's a shame. That's not leadership. That's a shame. And so, I ask Mr. Turley has Chairman Nadler satisfied his three-pronged test for impeachment?
TURLEY: With all do respect to the Chairman, I do not believe that those factors were satisfied.
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 the President Trump, "I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot 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.
NADLER: Gentlelady yields back. Ms. Jayapal.
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 --
[17:00:00]
