Constitutional Scholars Explain: This Is Just Why We Have Impeachment

Today’s Judiciary Committee hearing highlighted the constitutional stakes in the Trump impeachment process.
by Kim Wehle
December 4, 2019
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From left to right, constitutional scholars Noah Feldman of Harvard University, Pamela Karlan of Stanford University, Michael Gerhardt of the University of North Carolina, and Jonathan Turley of George Washington University are sworn in prior to testifying before the House Judiciary Committee in the Longworth House Office Building on December 4, 2019. (Alex Wong / Getty)

Today’s impeachment hearing before the House Judiciary Committee was a landslide win for the U.S. Constitution. Three constitutional scholars and law professors—Noah Feldman of Harvard, Pamela Karlan of Stanford, and Michael Gerhardt of the University of North Carolina (who is also an author of a leading book on impeachment)—passionately and unequivocally made the case for impeaching President Trump. For a president to ask for election interference from a foreign power is, in Professor Gerhardt’s words, “plainly an abuse of power. It’s a rather horrifying abuse of power.”

Speaking at the invitation of the committee’s Republican minority was Jonathan Turley, a law professor at George Washington University (and my colleague at CBS News). The thrust of his argument against impeachment was as follows: The process has been sorely truncated, lots of witnesses and facts have not been revealed, the courts have not definitively weighed in on the White House’s stonewalling of subpoenas, and a case of criminal statutory bribery as construed by the U.S. Supreme Court in 2016 has not been proven.

On the last point, Turley suggested that more direct evidence of the president’s corrupt intent is required to warrant impeachment—that is, in addition to the July 25 call summary showing that Trump asked Ukrainian President Zelensky to “do us a favor” by investigating the Bidens and the debunked, Putin-generated theory that the Ukrainians interfered with the 2016 presidential election. The record before Congress also includes White House Chief of Staff Mick Mulvaney’s public statement that the president’s withholding of $391 million in military aid was a quid pro quo, as well as State Department official David Holmes’s testimony that he overheard Trump ask European Union Ambassador Gordon Sondland: “So, he’s going to do the investigation?” According to Holmes, Sondland replied that “he’s going to do it,” then added that President Zelensky will “do anything you ask him to.”

Let’s cut through all the academic analysis we heard today and get to the bottom line:

1) The trio of constitutional scholars who concluded that impeachment is warranted underscored why the possibility of removing Trump in the 2020 election is no answer to his wrongdoing in office. If that were the case, then presidents could use the extraordinary power of their office to sway the next election, and the next, and the next. The Framers included the impeachment power as the only way to protect elections from presidential interference. All three professors characterized Trump’s quid pro quo and obstruction of Congress as a quintessential case for impeachment.

2) The Framers were very worried about foreign interference in elections, which is one factor that distinguishes Trump’s actions from those of the three prior presidents who were subject to impeachment proceedings—Andrew Johnson, Richard Nixon, and Bill Clinton. Not only did President Trump welcome Russian interference in the 2016 election (as the report of Special Counsel Robert Mueller concluded), but the very day after Mueller’s congressional testimony, Trump invited the Ukrainians to do the same on the infamous July 25 call. He also told ABC’s George Stephanopolous on air that he’d still willingly accept foreign help in elections, and publicly invited the Chinese to meddle. Absent impeachment, this behavior will be accepted as licit—or even the new normal—for the U.S. presidency.

3) The impeachment question today is tied directly to the right to vote, which is at the heart of American democracy. As Professor Karlan—a voting-rights expert—observed, President John F. Kennedy aptly declared that “the right to vote in a free American election is the most powerful and precious right in the world.” If foreigners get to decide American elections, it will no longer be a government of “We the People.” It doesn’t take a law degree or constitutional expertise to understand this inevitability. It’s a simple matter of logic. What’s at stake today is nothing short of the viability of the American system of government, which is characterized by free and fair elections, an accountable government, and individual rights. All of these could go away if we allow presidential conduct like this to go unchecked.

4) Trump’s obstruction of Congress is no sideshow. The Framers decided to create not a monarchy but a presidency subject to checks and balances from two other branches of government, including the Congress. One way of checking the president is through impeachment; indeed, the House of Representatives has the “sole” power of impeachment according to the Constitution’s text. But if a coordinate branch refuses to comply with requests for information needed to execute the impeachment power, that power becomes meaningless. And the presidency becomes a monarchy—or worse, a dictatorship.

5) The three experts called by the committee Democrats today all concurred that there are three separate issues that justify the impeachment of President Trump as a constitutional matter: First, he used his office for personal and political gain—as evidenced by the testimony of Sondland and others that he was only interested in announcements of Biden investigations, not actual investigations that would address phantom corruption. Second, he made efforts to corrupt a U.S. election by soliciting adverse public information from Ukraine about a political opponent. And third, he took steps that harmed U.S. national security—by undermining Ukraine’s ability to foster democracy and deter Russian military action, which has claimed some 13,000 lives since 2014—in direct contravention of his duties to serve the people and not himself.

The impeachment process now underway is not a one-note complaint, an “impulse buy” on the Democrats’ part (as Turley described it), or (as Turley also put it) a “wafer-thin” factual record being used to unseat a president who was merely exercising his lawful powers to conduct foreign policy. To be sure, the president has vast powers at his disposal. But impeachment exists in the Constitution to address when those powers are abused. The Framers understood the potential for abuse to be part and parcel of human nature and political reality—and they created the remedy of impeachment for situations like the one we now find ourselves in.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her new book, What You Need to Know About Voting—and Why (HarperCollins) goes on sale today, June 16. Twitter: @kimwehle.