Analysis after the Judiciary Committee impeachment hearing

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

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The House Judiciary Committee kicked off its first hearing of the impeachment inquiry on Wednesday with an exploration of the constitutional grounds for impeachment, including what constitutes bribery, high crimes and misdemeanors and whether President Donald Trump's actions meet those definitions.

The witnesses included Harvard law professor Noah Feldman; Stanford law professor Pamela Karlan; University of North Carolina law professor Michael Gerhardt; and George Washington University law professor Jonathan Turley. The first three witnesses were asked to testify by the committee's Democrats, and Turley was called by the panel's Republican members.

Highlights from the Judiciary hearing:

Read our 10 takeaways from the impeachment hearing so far — in plain English

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  • There has been talk of originalism, the Founding Fathers, King George III and the Secret Treaty of Dover — and someone used the word "necromancy."

GOP lawmakers trash impeachment process

  • Rep. Gaetz and witness Karlan trade barbs, while Rep. Buck questions whether other presidents should have been impeached.

Three of four witnesses say Trump committed impeachable offenses

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Bribery and the president's intent

Karlan testified that Trump’s Ukraine actions rise to the level of “bribery” — not just high crimes and misdemeanors — under the Constitution.

"Yes, they do,” she said under questioning from Democratic staff lawyer Norm Eisen.

Bribery is only one of a larger set of potentially impeachable offenses the House is considering, but her exchange with Eisen points to a key battle between House Democrats and the White House.

Karlan added later that the president met the threshold for bribery if his intention in withholding aid from Ukraine was to benefit himself politically through the investigations he wanted Ukrainian President Volodymyr Zelenskiy to announce into former Vice President Joe Biden as well as a conspiracy theory alleging Ukrainian meddling in the 2016 election.

“Then, yes, you have bribery there,” she said.

Establishing the intent of the president has been trickier for Democrats than other elements of the case because, while they have plenty of evidence that he and his lieutenants connected the aid to the investigations and have produced witnesses who concluded that his motivation was political, they have not demonstrated that Trump ever said he was going after Biden to help his own re-election.

Indeed, after it was clear to the White House that an intelligence community whistleblower was going to allege the president engaged in a bribery scheme, the president publicly declared there was “no quid pro quo” and senior political officials in the administration began explaining the aid freeze as a matter of  national security.

And, as Karlan noted, there is little to suggest that anyone in the president’s orbit who dealt with Ukraine pushed back on the idea that his motivation in freezing aid was for anything other than benefiting himself politically. It’s a fight in which Republicans will insist there’s no smoking gun and Democrats will point to all of the evidence that suggests personal political benefit is exactly what the president sought.

Karlan: I was so busy reading transcripts I didn’t make a turkey

As Republicans on the House Judiciary Committee argue the impeachment inquiry is fact-free, Karlan said repeatedly that she’s rooting her testimony in the countless sworn testimonies that were released publicly by the House Intelligence. And she has read them all, she said.  

"You know, I spent all of Thanksgiving vacation sitting there reading these transcripts," she said, adding that she "ate a turkey that came to us in the mail that was already cooked because I was spending my time doing this."

And that testimony, she said, was telling.

"Ambassador Sondland said he had to announce the investigations — he’s talking about President Zelenskiy — he had to announce the investigations, he didn’t have to do them as I understood it," Karlan said, apparently reading from a transcript of testimony. "What I took that to mean was that this was not about whether Vice President Biden committed corruption nor not. This was about injuring someone the president thought of as a particularly hard opponent."

Committee takes a break

The House Judiciary Committee has taken a break in the impeachment inquiry hearing for approximately 10 minutes. 

OPINION: Democrats' impeachment report is too muddled to change any minds

Impeachment is a political act that relies on making a legal case. And the lawyering in this report is atrocious.

Other readers may have different takeaways from this report, but my sense is that people who weren’t already predisposed to want President Donald Trump removed from office prematurely still won’t want him tossed after skimming this.

Read more here.

Law profs: Trump's actions are impeachable whether he got what he wanted or not

All of the law professors called as Democratic witnesses agreed that Trump's push for Ukraine to probe the Bidens and Democrats is impeachable regardless of whether Ukraine carried out or announced those investigations.

Whether or not Ukraine followed through on Trump's ask is irrelevant when considering whether Trump's conduct is impeachable, they said.

Feldman compared it to Watergate, where Nixon's team botched the operation. Karlan said "soliciting itself is the impeachable offense, regardless of whether the other person comes up with it," and compared it to a police officer asking for a bribe in order to let someone off the hook, only to let that person go when they could not come up with the money.

She said Trump's action "would have been an impeachable act even if" Zelenskiy "refused right there on the phone."

Gerhardt said he agreed with his counterparts' assessments, saying impeachments are "always focusing on someone who didn't quite get as far as they wanted to."

Hoyer: 'Serious questions' about Devin Nunes' actions

House Majority Leader Steny Hoyer, D-Md., said Wednesday that actions by Rep. Devin Nunes of California, the ranking Republican on the House Intelligence Committee, had raised "serious questions" that needed to be looked into.

A report released Tuesday by the House Intelligence Committee contained phone records between Nunes and Rudy Giuliani in April, when Giuliani was publicly calling for an investigation into former Vice President Joe Biden. 

When asked about Nunes, Hoyer, at his weekly off-camera briefing with reporters, said: "I think there are serious questions that have been raised by Mr. Nunes' actions, and we need to look at them and see what action ought to be taken if any. And I want to have input from other people before I opine on what ought to be done."

Hoyer did not specify what actions he was referring to, but he also addressed today's impeachment hearing and the timeline of drawing up and voting on any articles of impeachment.

"I think there is time to do it before the end of the year, but I am not saying that we are going to do it by the end of the year," Hoyer said. "But I am saying if the Judiciary Committee comes forward with recommendations and they come forward with recommendations in a timeframe in which we can get it done, then we will have the time to do it."

Karlan: Trump's push for investigations amounts to the impeachable offense of bribery

Karlan said that Trump's push for Ukraine to investigate Biden and Democrats amounted to bribery, which is specifically laid out as an impeachable offense.

In recent weeks, Democrats have started to accuse Trump of committing bribery in the impeachment inquiry.

Feldman then echoed Karlan's assessment.

Karlan to lawmakers: 'It's your responsibility' to ensure a fair 2020 election

Karlan made the most succinct argument for why Congress has to remove the president if he’s found to be trying to cheat to win a second term.

“It’s your responsibility to make sure that all Americans get to vote in a free and fair election next November,” she said.

Eisen hints at possible articles of impeachment in his opening questioning

Norman Eisen, the lead counsel for the House Judiciary Committee Democrats, hinted at what the committee may recommend as articles of impeachment at the onset of his 45 minutes of questioning Wednesday.

Eisen began by asking about several charges that might be included: abuse of power and bribery, obstruction of Congress and obstruction of justice.

As NBC News reported yesterday, Democrats are considering one to two articles on abuse of power, one article on contempt and obstruction of Congress, and one related to obstruction of justice.

Haake: Roll call votes can 'prevent this hearing from gaining any coherence'

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