Pollak: Four Questions Republicans Should Ask Impeachment Experts at First Judiciary Hearing

Jerry Nadler and Doug Collins (J. Scott Applewhite / Associated Press)
J. Scott Applewhite / Associated Press

The House Judiciary Committee will convene its first hearing in the impeachment inquiry on Wednesday, featuring four legal scholars who will testify on the legality and constitutionality of Democrats’ effort to bring down the president.

Aside from the absurdity of beginning the process of overturning a democratic election with the testimony of elite “experts,” there is also the unfairness: Democrats have called three of the witnesses, and allowed Republicans only one.

Still, the Republicans, led by Ranking Member Rep. Doug Collins (R-GA), should have a field day with the Democrats’ own panel of witnesses, since the experts’ past statements about the impeachment shed light on how absurd, partisan, and destructive the effort to take down President Donald Trump really is.

Here are crucial questions that Republicans should aim at each witness, when they have the opportunity:

1. Noah Feldman: Why trust you, when you backed impeachment since the beginning, for frivolous reasons?

In September 2017, Harvard Law School professor Noah Feldman co-authored an article in the New York Review of Books in which he argued that Trump could be impeached on a variety of grounds, including “defamation”:

Another [possible article of impeachment] is defamation — starting with a tweet in which Trump falsely accused Barack Obama of tapping his phones. Because presidents while in office are immune from civil lawsuits regarding their official acts, impeachment is the only remedy for a president who makes unsupported charges of criminality against his predecessor. Trump also made defamatory attacks on James Comey in a recent New York Times interview, accusing Comey of lying to Congress under oath and of attempting to blackmail him by threatening to expose the dossier on him prepared before the election by a former MI6 officer.

The tweet Feldman is referring to is the following, posted in early March 2017:

Trump’s accusation was not false: on Inauguration Day itself, the New York Times ran a top story with an all-caps headline declaring that Trump aides had been “wiretapped.” The FBI, under the Obama administration, wiretapped certain Trump aides as part of an investigation into possible collusion with Russia. The manner in which the FBI conducted that inquiry was questionable enough to be the subject of a Department of Justice Inspector General report, which is due out Monday.

So much for the “false accusation” (and Trump said nothing about his “phones”). Moreover, Obama is a public figure, and a political opponent: the bar for “defamation” would be extremely high.

As for James Comey, Trump’s interview stated his opinions of Comey’s conduct — hardly the stuff of defamation.

But even if Trump had defamed Obama or Comey, there is simply no constitutional basis for impeaching a president for the civil tort of defamation. It is not a “high crime” or “misdemeanor”; it is not even a crime. The fact that the Constitution does not provide a remedy for civil torts by a president in office does not mean that impeachment is a remedy by default.

Feldman’s evident desire to find any impeachable offense undermines his “expert” credibility.

2. Michael Gerhardt: Doesn’t the Democrats’ effort violate your own bipartisan standard for impeachment?

In 1999, in the wake of the divisive, partisan impeachment of President Bill Clinton, Gerhardt — now a professor at University of North Carolina Law School — wrote in the Maryland Law Review that future impeachments would be unlikely, given the country’s recent experience. However, he said, should impeachment take place, it should be done in a bipartisan fashion.

Specifically, Gerhardt said, the chairs of committees in the House of Representatives should not call witnesses or subpoena testimony without the cooperation and consent of members of the minority party. He hoped that Congress would, in future, “prioritize legislating wisely over endless partisan investigations”:

[M]embers of Congress should agree, at the very least, to have bipartisan support before authorizing congressional subpoenas or investigations. … Bipartisan agreement to investigate is essential to avoid abusive practices. … At the very least, members of Congress should require committee chairs and ranking minority members of committees to agree before initiating investigations or issuing legislative subpoenas.

None of that is present in the Democrats’ ongoing impeachment inquiry. While there was bipartisan agreement to investigate Russian interference in the 2016 election, and bipartisan agreement to support the investigation of Special Counsel Robert Mueller, Democrats were bitterly disappointed by the finding that the Trump campaign had not been involved in “Russian collusion.”

They proceeded as if Mueller’s report had found Trump guilty, and by August 1 — long before any allegations about Ukraine came to light — a majority of House Democrats supported an impeachment inquiry.

Democrats then abused their power by beginning an impeachment inquiry without formal authorization; by conducting it in the Intelligence Committee, which allowed them to keep testimony hidden and control access to information; and by adopting rules that depart from precedent by giving almost no power to the minority and no procedural rights to the president.

Gerhardt can come to no other conclusion: Democrats are doing it wrong.

3. Pamela Karlan: Why doesn’t your partisan bias disqualify you from acting as a credible witness?

Karlan, a professor at Stanford Law School, said in May 2017 that President Trump was “behaving extraordinarily badly” in firing FBI Director James Comey — a firing that Democrats had previously demanded, and that was subsequently justified by the Department of Justice Inspector General’s investigation of how Comey mishandled the investigation of Hillary Clinton’s emails (calling Comey’s conduct both “extraordinary and insubordinate”).

In addition, Karlan has apparently donated $1000 to the presidential campaign of Sen. Elizabeth Warren (D-MA).

Pamela Karlan contributions (FEC)

Pamela Karlan contributions (FEC)

She is the only one of the four witnesses to have contributed to a presidential candidate, according to current Federal Elections Commission data. She clearly has a stake in the outcome of the impeachment hearings, and the election beyond; Warren herself has backed impeachment since early 2019, when the Mueller report was first released, even though it found no evidence of “Russia collusion’ and did not recommend prosecution for obstruction of justice.

4. Jonathan Turley: Why are Democrats impeaching Trump on the “narrowest basis” in American history?

Turley, a liberal professor at George Washington University Law School, and the only witness Democrats have allowed Republicans to call, said on the first day of public hearings in the Intelligence Committee:

I think that there’s a lot to be outraged about. You certainly don’t need a crime for impeachment, but you do need clarity. And they’re proceeding on the narrowest basis for impeachment in the history of this country. We’ve never gone up with an impeachment just on abuse of power linked to a single controversy like this. That is a very slender basis. And I’m not too sure they gained a lot of ground on impeachment, as opposed to, all of this does not seem right to many of us. There’s a lot here that makes us all upset. But the question is, is this really an impeachable offense, and how do you distinguish what the president did here with what presidents do in conversations with heads of states?

Republicans should press Turley for even more historical context. The impeachment of Andrew Johnson, the first ever, is widely considered a terrible mistake by legal scholars. It divided the country and weakened the presidency. Though Johnson was — unlike Trump — an unsuccessful president, that alone was not reason to impeach him. Republicans at the time used a flimsy legal pretext to entrap Johnson; their real disagreement was with his policies.

Given that Democrats lack even a crime for which to impeach Trump, how are they not repeating the mistakes of the Johnson impeachment? How are they not violating their own standards, laid down during the Clinton impeachment, in which House Judiciary Committee chairman Rep. Jerry Nadler (D-NY), among others, said that a much more serious offense was required before the “undoing of a national election?” And what will be the damage to the country?

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.

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