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Transcript: Impeachment 101

The full episode transcript for Article II: Inside Impeachment, Impeachment 101.
Image: Noah Feldman, Pamela Karlan, Jonathan Turley, Michael Gerhardt
Harvard Law School professor Noah Feldman, Stanford Law School professor Pamela Karlan, University of North Carolina Law School professor Michael Gerhardt and George Washington University Law School professor Jonathan Turley are sworn in before testifying during a hearing before the House Judiciary Committee on Dec. 4, 2019.Alex Brandon / AP


Article II: Inside Impeachment

Impeachment 101

Jerry Nadler: This is a grand room.

Steve Kornacki: From NBC News, this is Article II: Inside Impeachment. I'm Steve Kornacki. It's Wednesday, December 4th, and here's what's happening in that grand hearing room today. (MUSIC)

Nadler: We have each taken an oath to protect the Constitution, and the facts before us are clear.

Doug Collins: There are no set facts here.

Kornacki: The impeachment inquiry moved to the House Judiciary Committee, overseen by Chairman Jerry Nadler of New York.

Nadler: We are all aware that the next election is looming, but we cannot wait for the election to address the present crisis.

Kornacki: And ranking member Doug Collins of Georgia.

Collins: They want to do it before the end of the year. Why? Because the chairman said it just a second ago. 'Cause we're scared of the elections next year. The clock and the calendar are what's driving impeachment, not the facts.

Kornacki: During the Intelligence Committee hearings last month, we heard from fact witnesses. But in this hearing, lawmakers called on constitutional scholars.

Noah Feldman: If you will, think now about a specific date in the Constitutional Convention, July 20th, 1787.

Michael Gerhardt: The framers' concern about the need to protect against a corrupt president was evident throughout the Convention.

Pamela Karlan: The very idea that a president might seek the aid of a foreign government in his reelection campaign would have horrified them.

Jonathan Turley: President Trump will not be our last president. And what we leave in the wake of this scandal will shape our democracy for generations to come.

Kornacki: The first voices you heard there were from the witnesses called by the Democrats, and they all argued for impeachment. The last voice you heard was from the lone witness called by Republicans, and he argued against impeachment. And so today on Article II, we are asking: How did the Democrats use their witnesses to advance their case for impeaching Donald Trump? And how did Republicans use their witness to push back? Josh Lederman is a national political reporter for NBC News, and he joins me now in studio here at 30 Rock. Hi Josh. Welcome.

Josh Lederman: Hey Steve. Great to be here.

Kornacki: So here we go. We had the Intelligence Committee hearings a couple weeks ago. Now, it moves to the Judiciary Committee. Things got started this morning a little after 10:00 a.m. And before we get into the heart of what was happening, we saw at the very beginning, as Jerry Nadler brought the hearing to order, there were a number of interruptions from the minority side, from the Republican side.

Nadler: Without objection, the chair is authorized to declare recesses of the committee at any time.

Archival Recording: Mr. Chairman--

Nadler: Quorum--

Archival Recording: --the right to object.

Nadler: Objection is noted.

Archival Recording: I reserve the right to object.

Kornacki: There were several other moments like that as the hearings got underway. What was going on there?

Lederman: What Republicans are trying to do when they interrupt these hearings, and we saw it to some degree also with the hearings that took place in the House Intelligence Committee, is to break up the flow and get into the rhythm that Democrats are trying to establish.

Archival Recording: Mr. Chairman--

Nadler: All in favor of the--

Archival Recording: Mr. Chairman, may we have the motion read, please?

Nadler: The motion was stated as to adjourn to (UNINTEL).

Archival Recording: May we have the motion read, please?

Nadler: The motion will be read. As to what date?

Lederman: Under the the rules under which the House operates, Democratic chairmen can't really just ignore and move on, depending on if they do it in the right way. The Democrats basically have no choice but to recognize them. And that allows Republicans to take back some of the time and to mix up the flow of the hearing.

Kornacki: It seemed to me to speak as well to the level of distrust between the two sides, the annoyance between the two sides. Just listening to the tone of Nadler as he kind of parried these objections, the tone of Republicans as they sort of went back at him and tried to force these votes. It seemed to speak to really the partisan divide on this committee.

Lederman: Yeah. And we did see some of that tension in the Intelligence Committee as well. But unlike the Intelligence Committee, which is typically stacked with pretty serious members of both parties, their kind of intellectual heavyweights, the Judiciary Committee has long had a history of being a much more rambunctious group. It's a much larger committee, tends to have folks on it who are from the extremes of the two parties. And so you get a dynamic where some of those worst partisan divides are exacerbated and really put into the forefront.

Kornacki: So when the objections settle down and the hearing got going, I should say, it's Jerry Nadler, the chairman. He gets to make the opening statement. Nadler's been there in Washington for a while. He was part of the defense of Bill Clinton back in 1998, the last impeachment. He was still a member back then. So Nadler now the chairman of the Judiciary Committee. He gets to make his opening statement and really try to set the tone for the day and for these hearings. What did he try to do with that opening statement?

Lederman: Part of what we heard from Nadler in his opener was a regurgitation of a lot of the key facts that we already know from the previous hearings but that Democrats really want to drive home for those at home every time that there is one of these hearings where they're expecting it to be a very large televised audience where they think that it might break through.

Nadler: And as we begin a review of these facts, the President's pattern of behavior becomes clear. President Trump welcomed foreign interference in the 2016 election. He demanded it for the 2020 election. In both cases, he got caught. And in both cases, he did everything in his power to prevent the American people from learning the truth about his conduct.

Lederman: So really going through some of the core allegations that Democrats have made about what the President was doing in Ukraine, also trying to convey the gravity of this and to emphasize that Democrats don't take this lightly, are not doing this because they enjoy it and just want to hurt the President politically, but that this is a solemn responsibility that Congress has to perform oversight and to impeach a president if he has conducted behavior that they deem to be impeachable.

Kornacki: In terms of the witnesses then, there were four witnesses who were there today. This was different than those Intelligence Committee hearings. We had all sorts of folks from deep within the State Department bureaucracy, all these titles, assistant deputy undersecretary. We got all those folks last time. Now, we got academics. We got academics with serious credentials when it came to constitutional law. What was the decision to make these folks the centerpiece of the first day of these hearings?

Lederman: Previous witnesses were fact witnesses to tell us what happened and when. Now, the point of the committee as the Democrats set it up, and it's consistent with how some of these impeachment hearings have been conducted in the Judiciary Committee in the past in our history, is to basically do impeachment 101 for Americans.

What is the impeachment process? What are some of these key terms like "high crimes and misdemeanors" that are being bandied about? And what did the founding fathers have in mind when they were laying out these specific offenses that were so serious that they would merit impeaching a duly elected president?

Kornacki: So we mentioned this, too, in the opening there. Of these four witnesses, three were called. One of them, one of the witnesses Democrats called, Professor Pamela Karlan, she talked about foreign interference in an election. What was the argument she was trying to make there?

Lederman: She's someone we've been hearing about in the last few days. A lot of folks who knew her, who have followed her legal career said that she's somewhat of a firebrand. She's someone who's very colorful, pretty funny, cares very deeply about election integrity. And in her statement, she created this really elaborate hypothetical to try to drive the point home.

Karlan: Imagine living in a part of Louisiana or Texas that's prone to devastating hurricanes and flooding. What would you think if you lived there and your governor asked for a meeting with the president to discuss getting disaster aid? What would you think if that president said, "I would like you to do us a favor. I'll meet with you, and I'll send the disaster relief once you brand my opponent a criminal"? Wouldn't you know in your gut that such a president had abused his office, that he betrayed the national interest, and that he was trying to corrupt the electoral process?

Lederman: And her point is that conduct the President has already committed by inviting foreign interference in a U.S. election is not only what Democrats say would be an abuse of power but is also something that has made the elections that are carried out here in the United States fundamentally less fair and less free.

Kornacki: So I mentioned, too, these hearings, like those Intelligence Committee hearings that we watched a couple weeks ago, they featured these 45-minute rounds of questions. It started with Democrats, and then their lawyer, his Norm Eisen in this case, got 45 minutes with the witnesses. Later on, the Republicans did too. Let's look at what the Democrats did. What was Eisen trying to advance with that time?

Lederman: So Norm Eisen is someone who has been also a familiar face for quite a while, having served in government quite a bit, including in the Obama administration, and is comfortable in these kinds of settings. He gets how to make television and how to create certain moments. And what he really wanted to do was to get all three of the witnesses selected by Democrats on the record saying that they felt that the President's behavior constituted the three elements that Democrats have seized on and are considering as articles of impeachment: abuse of power, bribery, obstruction of justice.

Norman Eisen: Did President Trump commit the impeachable high crime and misdemeanor of abuse of power based on that evidence and those findings?

Feldman: Based on that evidence and those findings, the President did commit an impeachable abuse of office.

Eisen: Professor Karlan, same question.

Karlan: Same answer.

Eisen: And, Professor Gerhardt, did President Trump commit the impeachable high crime and misdemeanor of abuse of power?

Gerhardt: We three are unanimous. Yes. (MUSIC)

Kornacki: We're gonna take a quick pause. And we'll be right back. So let's get to how the Republicans and how the witness they called handled this. Start here with an exchange. This played out over an extended period of time. It began though with Doug Collins. Doug Collins, the ranking Republican member on this committee. Doug Collins from Georgia. He got an opening statement. This followed Nadler's opening statement, kind of at the beginning of all this. In that opening statement, Collins seemed to be questioning the point of calling legal scholars to begin with.

Collins: Really? We're bringing you in here today to testify on stuff that most of you've already written about, all four, for the opinions that we already know, to discuss things that you probably haven't even had a chance, unless you're really good on TV, watching the hearings for the last couple weeks, you couldn't have possibly actually digested the Adam Schiff report from yesterday or the Republican response in any real way.

Kornacki: That was Collins' argument in his opening statement. Then, a while later, in her opening statement, Pamela Karlan took issue with that.

Karlan: Here, Mr. Collins, I would like to say to you, sir, that I read transcripts of every one of the witnesses who appeared in the live hearing because I would not speak about these things without reviewing the facts. So I'm insulted by the suggestion that as a law professor I don't care about those facts.

Lederman: Yeah, this was such an interesting moment because it wasn't even directly after Collins had made this allegation that basically these witnesses wouldn't have been paying attention. But Karlan took it upon herself in her opening statement to basically ad lib a response to this attack she'd just gotten a few minutes earlier from Congressman Collins and to say, "Look, we're serious people."

I mean, these are law professors who built their careers based on their diligence and having done their homework, so to speak. You know, making the point that none of them would be there throwing about opinions that they hadn't fully grounded in the facts as they've been laid out in dozens of hours of testimony under oath.

Kornacki: So beyond that thing that Collins said that set all of that off, let's get to the argument he was trying to put forward in his opening statement.

Collins: You know where this started? It started with tears in Brooklyn in November 2016. We are here, no plan, no fact witnesses, simply being a rubber stamp for what we have. But, hey, we got law professors here. What a start of a party.

Kornacki: That line, I think, caught a lot of people's attention. "It started with tears in Brooklyn." Brooklyn, remember, was the headquarters of the Clinton campaign back in 2016. It sounds like the argument he's trying to make here is, "Hey, from the minute Trump got elected, Democrats were looking for some way, any way to get to where they are today."

Lederman: It's a continuation of what we saw all along in this, which is that Republicans have felt that their strongest way to counteract these impeachment proceedings is to attack the process and to say that the basic process is illegitimate, therefore any conclusions it's gonna reach are also illegitimate.

Kornacki: There were four witnesses there at the table, the three called by Democrats and the one called by Republicans, Jonathan Turley from George Washington. Was that by design? Could Republicans have called two more if they wanted? Were they only given one? What was the reason it was three and one?

Lederman: So for this initial hearing, because the fact that Democrats control the House and therefore control the committees, they allowed the Republicans to bring one witness, and they had three of their own. However, the Democrats also invited the White House to send counsel, to have President Trump attend himself if he wanted to do that.

But at a minimum to send his lawyers, who would be able to make their own comments and to cross-examine witnesses and present any kind of a defense. So far, the White House has declined to participate in this, although the White House has left open the possibility that it could send counsel for additional hearings that could take place.

Kornacki: When Turley gets to make his argument against impeachment, the argument Republicans called him to make, he set it up, I thought, in an interesting way. He sort of said at the outset, "I, Jonathan Turley, did not vote for Donald Trump in 2016. I did not want him to be president." He was trying to frame his argument as principled and not coming from partisanship. What was the argument he was trying to make?

Lederman: Yeah, it was so interesting. Because just like the Republicans have tried to say, that these Democratic witnesses shouldn't be believed because they didn't like Trump in the first place, he as the lone witness called by the Republicans was trying to make the case that his belief that the President shouldn't be impeached at this point was not based on some political views but on his cold analysis as a legal scholar.

Turley: I get it. You're mad. The President's mad. My Republican friends are mad. My Democratic friends are mad. My wife is mad. My kids are mad. Even my dog seems mad. And Luna's a Goldendoodle, and they don't get mad. So we're all mad. Where has that taken us? Will a slipshod impeachment make us less mad? Will it only invite an invitation for the madness to follow every future administration? That is why this is wrong.

Lederman: He also tried to make the case that this broader impeachment process was basically driven by electoral politics and the desire to get rid of the President, as opposed to any sober consideration of the facts, which, you know, he argued again and again that it has just been much too fast of a process to do justice to the situation and to the President.

Kornacki: It seemed like he was arguing, and tell me if this was how you interpreted it. It wasn't necessarily that this Ukraine scandal couldn't in some way ultimately lead to Trump's impeachment. He was arguing more with the process Democrats were using and saying, "If you're going to impeach Trump over this, this is not the way to do it, and therefore this impeachment shouldn't happen."

Lederman: That's right. And trying to buttress that case by talking about what he described as a dearth of evidence that had been put forward by the Democrats compared to past historical impeachment proceedings.

Turley: I think that that's clear because this is one of the thinnest records ever to go forward on impeachment. It has left doubts, not just doubts in the minds of people supporting President Trump, doubts in the minds of people like myself about what actually occurred. There's a difference between requesting investigations and a quid pro quo. You need to stick the landing on the quid pro quo.

Kornacki: Have we gotten any reaction from the White House to what happened today?

Lederman: A lot of reaction from President Trump, who's been finishing up a trip to London. He's basically been dismissing the whole process and saying that he thought that Americans probably wouldn't pay attention to it anyway because it was, quote, "boring."

The White House, meanwhile, has been pretty aggressively circulating talking points about the individual witnesses, trying to impugn the credibility of the witnesses who were called by Democrats, and to point out their past statements either supporting impeachment or critical of the President, by way of trying to argue that they've long since made up their minds about this process and that they're not coming to the conclusions they have now based on an analysis of the facts and the evidence but based on their own personal predilections.

Kornacki: And finally, as all of this is playing out today on Capitol Hill, another piece of news related to all of this impeachment drama involving Rudy Giuliani, the President's personal lawyer. Of course, his name has come up so much in this whole story of what was going on with the Trump administration and its posture towards Ukraine. What are we finding out now about Giuliani?

Lederman: You would think that given all of these allegations that are swirling and also a federal investigation involving Giuliani he might be keeping his head down. But we learned today that that is not the case. NBC News confirming that Rudy Giuliani was in Hungary just last night, where he met with the U.S. ambassador there. They had a private dinner.

Now, The New York Times is also reporting that Giuliani was there to interview Lutsenko, Yuriy Lutsenko, who was the former prosecutor general of Ukraine and a major player in this impeachment saga. He's the one that the Republicans have alleged Vice President Joe Biden tried to get rid of in an attempt to shield his son and his natural gas company from further scrutiny.

We have not yet confirmed that Giuliani did meet with Lutsenko while he was in Hungary, but certainly the fact that he is back in Europe holding meetings with senior U.S. government officials in the middle of all of this is gonna be fresh evidence for Democrats about the brazenness of Trump and his allies in continuing to involve themselves in all of this, even as they are under such intense public scrutiny. (MUSIC)

Kornacki: Josh Lederman, national political reporter for NBC News. Josh, thanks for being with us.

Lederman: Thanks, Steve.

Kornacki: And looking ahead, Chairman Jerry Nadler has set a deadline of this Friday for the President to decide whether his counsel will mount a defense in the impeachment process. But at the moment, no other public hearings are scheduled. Article II: Inside Impeachment is produced by Isabel Angel, Max Jacobs, Claire Tighe, Aaron Dalton, Preeti Varathan, Allison Bailey, Adam Noboa, and Barbara Raab. Our executive producer is Ellen Frankman. Steve Lickteig is the executive producer of audio. I'm Steve Kornacki. We'll be back on Friday.