Four Legal Experts Weighed In on Impeachment. Did It Matter?

(Bloomberg Opinion) --

House Democrats moved the impeachment of President Donald Trump to the judiciary committee Wednesday, with a hearing featuring four law professors. The three called by Democrats (including my Bloomberg Opinion colleague Noah Feldman) all argued that impeachment is an easy call given the facts of the case; the dissenting witness called by Republicans argued that the process was moving too fast and that the evidence presented so far is too weak to justify ousting the president.

It wasn't a hearing designed to change minds, and I doubt it did.

For one thing, the Democrats chose to bring in three experts who all had some history of supporting Democrats; the Republican witness, meanwhile, seemed to be directly contradicting testimony he had given during President Bill Clinton's impeachment. Why choose witnesses with such obvious flaws? Partly because, again, this wasn't about changing minds. And partly because it wouldn't have been easy for Democrats to find a Trump-supporting constitutional-law expert who could affirm their views on impeachment, and Republicans would've had an even harder time digging up someone who has held consistent views of impeachment that would align with what they wanted to hear.

All that aside, the majority witnesses made a pretty solid case that what Trump has done is exactly what the impeachment process was meant to address. And the minority witness, Jonathan Turley of George Washington University, was able to sound sober and serious in arguing that Democrats were moving too quickly and hadn't yet established evidence of impeachable offenses. Granted, everyone was helped by a lack of interest in challenging what they had to say. Committee Democrats almost completely ignored Turley, and the Republicans did the same for the majority experts. 

Instead of affecting public opinion, this hearing was more of a formal gesture, with Democrats interested in showing themselves to be following best practices from the past and Republicans pressing their case that the procedures were unfair. In other words, everyone was supplying their own supporters with a way to understand what was going on, rather than focusing on undecided citizens (most of whom probably aren't paying attention).

Turley's strongest point wasn't his claim that Democrats are rushing. After all, they can argue that they have all the information they can get for now, and that it's the president's fault they don't have more — and that with Trump threatening to undermine the 2020 election by soliciting foreign interference, there's plenty of reason to move quickly. Instead, I thought Turley's best claim was that the other witnesses were setting up an expansive definition of impeachable offenses that would likely take in many marginal presidential actions.

(OK, Turley's actual strongest point was that he didn't shout all the time as several Republicans on the judiciary and intelligence committees do, and he mostly avoided conspiracy theories, irrational leaps of logic or flat-out falsehoods. In other words, he made Trump's case look better than House Republicans — or indeed Trump himself — have so far managed.) 

Committee members could've rebutted that point had they also invited historians and political scientists to testify. Historians could explain that, in fact, many presidents over the years have committed acts that probably would've justified a legitimate impeachment and removal, but that impeachment is rare anyway. Political scientists could've argued that this is because impeachment is inherently political; as I've said, there really is a large middle ground in which impeachment can be legitimately justified but still not demanded by the evidence — and that's pretty much where Trump was up until the Ukraine episode.

Of course, this wasn't a seminar; it was a public argument. Neither side was interested in nuance. And so the lawyers on this panel were probably the logical experts to invite. Just remember that their view of the Constitution — while valuable — isn't the only one, or necessarily the best one. 

1. Melanye Price on Senator Kamala Harris. One thing I'd add is to keep her failure in context; after all, even with the early exit, Harris was still one of the half dozen or so candidates who came closest to the nomination. 

2. Eric Oliver and Thomas Wood at the Monkey Cage on impeachment and belief in conspiracy theories.

3. Molly E. Reynolds and Margaret Taylor look at where impeachment proceedings go from here.

4. My Bloomberg Opinion colleague Francis Wilkinson on Attorney General William Barr and 2020 election security.

5. And Ashley Feinberg gets it just about right on Republicans dragging the president's youngest son into political battles. I support the overprotective norm that's evolved in this century of basically never mentioning non-adult presidential children. They, like all celebrity kids, never asked for it. Expert witness Pamela Karlan violated that norm in yesterday's hearing. She erred in doing so, and I'm glad she apologized. (And don't tell me her comment, a mild joke on Trump's son's name, was harmless; I don't think too many kids would appreciate having jokes made about their names on national TV.) But while I'd give a mulligan to the kid's parents for criticizing the joke and maybe another to a Republican in the hearing room, anything more is as much a violation of the norm as the original comment. The right way to handle this is to keep it low-key. Instead, it's at least a noisy one-day story and Republicans may drag it out longer. That's on them, not Karlan. 

To contact the editor responsible for this story: Timothy Lavin at tlavin1@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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