If you thought Adam Schiff’s gossip session last month was Peak Impeachment Excitement, stand by for Jerrold Nadler’s circus launch today. Will there be bombshell witnesses to high crimes and misdemeanors? Intrigue and inside gossip at the highest levels of diplomacy? A description of the inside of Rudy Giuliani’s briefcase?
Er … not exactly. Bring your No-Doz and the darkest roast espresso possible, because the House Judiciary Committee will take public testimony from four witnesses who have nothing to do with Ukraine, Donald Trump, Joe Biden, Burisma, Volodymyr Zelensky, or anything else except their own opinions about impeachment. Appearing for House Democrats will be con-law experts Pamela Karlan, Noah Feldman, and Michael Gerhardt. And on the right will be self-professed liberal con-law expert Jonathan Turley, who has already weighed in repeatedly about the folly of House Democrats’ exercise.
In his prepared remarks, Turley covers the same ground in detail. Noting that he has a long record of skepticism toward executive power and presidents in particular — “the last president whose executive philosophy I consistently admired was James Madison,” Turley writes — he nevertheless rises to oppose the assumptions Congress will have to make in this impeachment effort, and the obvious political nature of the endeavor. In fact, Turley explicitly scolds Congress for its unseriousness regarding impeachment:
This misuse of impeachment has been plain during the Trump Administration. Members have called for removal based on a myriad of objections against this President. Rep. Al Green (D-Texas) filed a resolution in the House of Representatives for impeachment after Trump called for players kneeling during the national anthem to be fired.20 Others called for impeachment over President Trump’s controversial statement on the Charlottesville protests.21 Rep. Steve Cohen’s (D-Tenn.) explained that “If the president can’t recognize the difference between these domestic terrorists and the people who oppose their anti-American attitudes, then he cannot defend us.”22
These calls have been joined by an array of legal experts who have insisted that clear criminal conduct by Trump, including treason, have been shown in the Russian investigation. Professor Lawrence Tribe argued that Trump’s pardoning of former Arizona sheriff Joe Arpaio is clearly impeachable and could even be overturned by the courts.23 Richard Painter, chief White House ethics lawyer for George W. Bush and a professor at the University of Minnesota Law School, declared that President Trump’s participation in fundraisers for Senators, a common practice of all presidents in election years, is impeachable. Painter insists that any such fundraising can constitute “felony bribery” since these senators will likely sit in judgment in any impeachment trial. Painter declared “This is a bribe. Any other American who offered cash to the jury before a trial would go to prison for felony bribery. But he can get away with it?”24
CNN Legal Analyst Jeff Toobin declared, on the air, that Trump could be impeached solely on the basis of a tweet in which Trump criticized then Attorney General Jeff Sessions for federal charges brought against two Republican congressman shortly before the mid-term elections.25 CNN Legal Analyst and former White House ethics attorney Norm Eisen claimed before the release of the Mueller report (which ultimately rejected any knowing collusion or conspiracy by Trump officials with Russian operatives) that the criminal case for collusion was “devastating” and that Trump is “colluding in plain sight.”26 I have known many of these members and commentators for years on a professional or personal basis. I do not question their sincere beliefs on the grounds for such impeachments, but we have fundamental differences in the meaning and proper use of this rarely used constitutional device.
As I have previously written,27 such misuses of impeachment would convert our process into a type of no-confidence vote of Parliament. Impeachment has become an impulse buy item in our raging political environment. Slate has even featured a running “Impeach-O-Meter.” Despite my disagreement with many of President Trump’s policies and statements, impeachment was never intended to be used as a mid-term corrective option for a divisive or unpopular leader.
Perhaps tellingly, Turley’s opening statement is detailed and extensive — far more than those of his opponents’ statements. The statements from the three Democrat witnesses, two of which are double spaced, add up to 22 pages of testimony combined. Turley’s single-spaced opening statement runs 53 pages and covers the entire history of impeachment, including the notorious effort against Governor General William Hastings of the East India Tea Company, a political disaster that backfired on Edmund Burke and led the American founders to insist on a far more limited version of impeachment.
By comparison, the other statements offer little more than the thin gruel already advanced repeatedly by House Democrats. In fact, they might have been better off calling Adam Schiff to deliver any or all of the overlapping arguments from Karlan, Feldman, and Gerhardt, except that he’d then be subject to cross-examination by the Republicans on the panel. The White House complained about the imbalance of outside experts for today’s debate, but it seems as though Turley plans to make up for it by exceeding his opponents all by himself.
It’s tough to imagine too many “BOMBSHELL” moments coming out of these arguments, though, not even for a media environment thirsting for such headlines. The only real drama will be procedural, as the Judiciary Committee minority jousts with the majority, but all of this — all of it — is procedural rather than substantive. There will be no new evidence placed in the record, no new witnesses to fill in the hearsay gaps left gaping by Schiff. The few viewers who tune in at the start will either find the experience a fabulous soporific or an impetus to see all of the action on the Home Shopping Network.
A game-changer this won’t be, at least not in the way House Democrats hope — and now desperately need.