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Lawmakers Question Constitutional Experts on Impeachment. Aired 1-2p ET
Aired December 4, 2019 - 13:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[13:00:00] TAYLOR: -- and 31 Democrats.
Now fast forward to the current impeachment. House Democrats Trump Impeachment drive was subsequently approved only by Democrats and indeed it was approved over the opposition of two Democrats and all Republicans. Professor Turley, how does this trend comport (ph) with how the Founders understood impeachment should operate?
TURLEY: I believe that the Founders certainly had aspirations that we would come together as a t-fold (ph) but they didn't have any delusions. It certainly was not something that they achieved in their lifetime. I, although, you'd be surprise that some of these Framers actually did at the ends of their lives, including Jefferson and Adams, sort of reconcile in deed, I think one of he most weighty and significant moments in constitutional history is the one that is rarely discussed. That Adams and Jefferson reached out to each other, that they wanted to, they wanted to reconcile before they died. And they met and they did.
And maybe that is something that we can learn from. But I think that the greater thing I would point to is the seven Republicans in the Johnson Impeachment. If I could just read one think to you. And everyone often talks about one for the Senators but not this one. And that's Lyman Trumbull, who was a fantastic Senator. He became a great advocate for Civil Liberties. You have to understand that most of these Senators, when it was said, that they jumped into their political grades, it was true. Most of their political careers ended they knew they would end because of the animosity of the period.
Trumbull said the following, he aide once this, set the example of impeaching a President for what when the excitement of the hour shall have subsided will be regarded as insufficient causes. No future President will be safe who happen to differ from the majority of the House and 2/3 of the Senate. He said I tremble for the future of my country. I can not be an instrument to produce such a result (ph) and at the hazard of the ties. Even a friendship and affection til calmer times shall do justice to my motives. No alternatives are left to me. And he proceeded to give the vote that ended his career.
You can't wait for calmer times. The time, for you, is now. And I would say what Trumbull said just has even more bearing today. Because I believe that this is much like the Johnson Impeachment. It's manufactured until you build a record. I'm not saying you can't build a record. But you can't do it like this. And you can't Impeach a President like this.
EISEN: Professor Turley, there's a recent book on impeachment by Harvard Law Professor Laurence Tribe and Joshua Matz that discusses what they consider to be a legitimate impeachment process. The book is pretty anti-Trump. It's called "To End a Presidency", and in that book the authors state the following. When an impeachment is purely partisan or appears that way it is presumptively illegitimate. When only Republicans or only Democrats view the President's conduct as justifying removal there's a strong risk that policy disagreements or partisan antimist (ph) have over taken the proper measure of Congressional impartiality. Another quote is we can also expect that opposition leaders to the President will be pushed to impeach and will suffer internal blowback if they don't. The key question is whether they will cave to this pressure.
One risk of our broken politics is that the House will undertake additional doomed partisan impeachments a development that would be disastrous for the nation as a whole. Professor Turley, is that advise being followed by House Democrats in this case?
TURLEY: Not on this schedule. The one thing, if you look at, I laid out the three impeachments, the one thing that comes out of those impeachments in terms of what bipartisan support occurred is that impeachments require a certain period saturation and maturation. That is the public has to catch up. I'm not prejudging what your record would show, but if you rush this impeachment, you're going to leave half the country behind, and certainly that's not what the president -- what the framers wanted. You have to give the time to build a record. This isn't an impulse-buy item. You're trying to remove a duly-elected President of the United States, and that takes time and takes work.
But at the end if you look at Nixon, which was the gold standard in this respect, the public did catch up. They originally did not support impeachment, but they changed their mind. You changed their mind and so did, by the way, the courts because you allowed these issues to be heard in the courts.
TAYLOR: Professor Turley, the Nixon and Clinton impeachments were debated solidly in the high crimes category, correct?
TAYLOR: Crimes were at issue? But on the evidence presented so far, is it your view that there is no credible evidence that any crime was committed by President Trump?
TURLEY: Yes. I've gone through all of the crimes mentioned. They do not meet any reasonable interpretation of those crimes, and I'm relying on expressed statements from the federal courts. I understand that the language in the statutes are often broad. That's not the controlling language. It's the language of the interpretation of federal courts, and I think that all of those decisions stand mildly (ph) in the way of these theories. And if you can't make out those crimes, then don't call it that crime. If it doesn't matter, then what's the point? Call it treason. Call it endangered species violations if none of this matters.
TAYLOR: So that would put the Democrats' move to impeachment President Trump in the category of high misdemeanors. In James Madison's notes of the Constitutional Convention debates, they clearly show that the term high misdemeanor was explicitly referred to as a technical term and it wasn't just something that any majority or partisan members might happen to think was at any given time.
And often when there's a debate about a technical term, people turn to dictionaries, and the first truly-comprehensive dictionary was Samuel Johnson's "A Dictionary of the English Language". It was first published in 1755, and the founders and many of their libraries have this book on their desks, and the Supreme Court still cites Johnson's dictionary to determine the original public understanding of the words used in the Constitution. So here's how the 1785 edition of Johnson's dictionary defines the relevant terms and high misdemeanor.
High, the relevant sub-definition capital great, opposed to little as high treason. The definition of misdemeanor is defined as something less than an atrocious crime. And atrocious crime is defined as wicked in a high degree, enormous, horribly criminal.
So if you look at how these words were defined during the time the Constitution was debated and ratified, a misdemeanor is something less than an atrocious crime, and atrocious is wicked in a high degree. And as a result, the high misdemeanor must be something like just less than a crime that's wicked in a high degree.
Now, Professor Turley, does that generally comport with your understanding of the phrase high misdemeanors that was understood by the founders with the purpose of narrowing that phrase to prevent the sorts of abuses that you describe?
TURLEY: It did. I mean, if you compared this to the extradition clause, the language was -- that was used was different for a reason. They did not want to establish a type of broad meaning. According to the view of some people as to the meaning of high crimes and misdemeanors, those provisions would be essentially identical, and that's clearly not what they wanted.
TAYLOR: Professors Turley, next I'd like to explore how this impeachment is based on no crime and no request for false information unlike the Nixon and Clinton impeachments. I'd like to start with some background.
The American media for years has been asking questions about former Vice President Biden's son and his paid involvement with a corrupt Ukrainian energy company, Burisma. Here's one example of those media reports from June 2019. It was an ABC News investigation titled "Hunter Biden's Foreign Deals: Did Joe Biden's Son Profit Off Father's Position as Vice President?" There's a still clip of it here from a -- with a Burisma promotional video. Many have seen the video of Joe Biden getting the Ukrainian prosecutor who was investigating Burisma fired. And a New York Times article says from May 1, 2019, referring to Joseph R. Biden one of his most memorable performances came on a trip to Kiev in March 2016 when he threatened to withhold a billion dollars in United States' loan guarantees if Ukraine's leaders did not dismiss the country's top prosecutor.
Among those who had a stake in the outcome was Hunter Biden, Mr. Biden's younger son who at the time was on the board of an energy company owned by a Ukrainian oligarch who had been in the sites of the fired prosecutor general. So even if Hunter Biden engaged in no crimes regarding in sitting on the board of Burisma, if an investigation led to the bankruptcy of the corrupt company, Hunter Biden's lucrative position on the Burisma board would have been eliminated along with his $50,000 a month payments. That was his stake in a potential prosecution involving the company.
In fact, even Neal Katyal, the former Acting Solicitor General under President Obama in recent book entitled "Impeach" says the following. "Is what Hunter Biden did wrong? Absolutely. Hunter Biden had no real experience in the energy sector which made him wholly unqualified to sit on the board of Burisma. The only logical reason the company could have had for appointing him was his ties to Vice President Biden. This kind of nepotism isn't only wrong. It is a potential danger to our country since it makes it easier for foreign powers to buy influence. No politician from either party should allow a foreign power to conduct this kind of influence peddling with their family members. Also Lieutenant Colonel Vindman was asked at his hearing would it ever be U.S. foreign policy, in your experience, to ask a foreign leader to open a political investigation, and he replied certainly the president is well within his right to do that."
So the American media and others were asking questions about Hunter Biden and his involvement in Ukraine, and President Trump in his call with the Ukrainian President simply asked the same questions the media was asking. Now Professor Turley, is it your understanding that the House impeached Nixon for helping cover up his administration's involvement in a crime and that the evidentiary record showed Nixon knew of criminal acts and sought to conceal them, including tape recordings of President Nixon ordering a cover up of the Watergate break in shortly of it occurred?
TURLEY: It is.
TAYLOR: And is it also your understanding if the House impeached Clinton for the crime of lying under oath to deny a woman suing him for sexual harassment evidence she was legally entitled to?
TURLEY: That's correct.
TAYLOR: So there were requests for false information in both the Nixon and Clinton scandals by the president's aides or associates or by the president himself, correct? TURLEY: Yes.
TAYLOR: But there are no words in the four corners of the transcript of President Trump's call that show a request for false information, are there?
TURLEY: No, and that's the -- that's one of the reasons why if you want to establish the opposing view you have to investigate this further.
TAYLOR: Now, let me walk through the standard of evidence House Democrats insisted upon during the Clinton impeachment. The minority views in the Clinton impeachment report were signed by, among others, current Senate Minority Leader Schumer and current House Judiciary Committee Chairman Nadler. And they say that one of the professors who testified, quote, "has meticulously documented how in the Nixon inquiry everyone agreed the majority, the minority, and the president's counsel that the standard of proof for the Committee and the House was clear and convincing evidence." Professor Turley, would you agree that the evidence compiled to date by House Democrats during these current impeachment proceedings fails to meet the standard of clear and convincing evidence?
TURLEY: I do by considerable measure.
TAYLOR: Now let me turn again to the book "To End a Presidency". In that book, the author states the following. Quote, "accepting the most extra ordinary circumstances, impeaching with a partial or plausibly contested understanding of key facts is a bad idea." Professor Turley, do you think that impeaching in this case would constitute impeaching with a partial or plausibly contested understanding of key facts is a bad idea. Professor Turley, do you think that impeaching in this case would constitute impeaching with a partial or plausibly contested understanding of key facts?
TURLEY: I think that that's clear, because the -- this is one of the thinnest records ever to go forward on impeachment. I mean the Johnson record, once again, we can debate, because this -- that was the fourth attempt at an impeachment, this is certainly the thinnest of a modern record.
If you take a look at the size of the record of Clinton an Nixon, they were massive in comparison to this, which is almost wafer thin in comparison. And it has left doubts, not just in doubts in the minds of people supporting President Trump, doubts in the minds of people like myself, about what actually occurred.
There's a difference between requesting investigations and a quid pro quo. You need to stick the landing on the quid pro quo. You need to get the evidence to support it. It might be out there, I don't know, but it's not in this record. I agree with my colleagues, we've all read the record, and I just come to a different conclusion. I don't see proof of a quid pro quo, no matter what my presumptions, assumptions or bias might be.
TAYLOR: On that point, I'd like to turn now to the current impeachment procedures. Professor Turley, would you agree that a full and fair adversary system, in which each side gets to present its own evidence and witnesses, is essential to the search for truth?
TURLEY: It is. And the interesting thing is, on the English impeachment model that was rejected by the framers, they took the language, but they actually rejected the model of the impeachment from England, particularly in terms of Hastings, but even in England it was a robust adversarial process. And if you want to see adversarial work, take a look at what Edmund Burke did to warn Hastings. I mean, he was on him like ugly on moose for the entire -- the entire trial.
TAYLOR: And as you know, in the minority views and the Clinton impeachment report, the House Democrats wrote the following; we believe it is incumbent upon the Committee to provide these basic protections, as Representative Barbara Jordan observed during the Watergate inquiry. Impeachment not only mandates due process, but due process quadrupled.
The same minority views also support the right to cross-examination and a variety of context in the Clinton example.
Now Professor Turley, you describe how Monica Lewinsky wasn't allowed to be called as a witness in the Senate impeachment trial. And after her original testimony you (ph) revealed how she had been told to lie her relationship with President Clinton by his close associates.
It's a cautionary tail about the dangers of denying key witnesses. Can you elaborate on that?
TURLEY: Yes, the only reason I mentioned that is, that was in a portion of my testimony dealing with how you structure these impeachments. What happened during the Clinton impeachment and it came up during the hearing that we had previously, I -- was the question of how much the House had to do in terms of Clinton impeachment, because you had this robust record created by the Independent Council, and they had a lot of testimony, video tapes, et cetera, so the House basically incorporated that and the assumption was that those witnesses would be called at the Senate.
But there was a failure at the Senate, the rules that were -- were applied, in my view, were not fair. They restricted witnesses to only three, and that's why I brought up the Lewinsky matter.
About a year ago, Monica Lewinsky revealed that she had been told that is she signed that affidavit, that we now know is untrue, that -- that she would not be called as a witness.
If you had actually called live witnesses, that type of information would have been part of the record.
COLLINS: Thank you. Mr. Chairman, I yield back.
NADLER: The gentleman yields back. I note, that this is the moment in which the White House would have had an opportunity to question the witnesses, but they declined their invitation. So, we will now proceed to questions under the five minute rule.
I yield myself five minutes for the purpose of questioning the witnesses.
Professor Feldman, would you respond to Professor Turley's comments about bribery, especially about the relevance of the elements of criminal bribery?
FELDMAN: Yes. Bribery had a clear meaning to the framers. It was when the president, using the power of his office, silicates or receives something of personal value from someone effected by his officials powers. And I want to be very clear, the Constitution is law. The Constitution is the supreme law of the land.
So, of course, Professor Turley is right, you wouldn't want to impeach someone who didn't violate the law. But the Constitution, the supreme law of the land specifies bribery as a ground of impeachment, as it specifies other high crimes and misdemeanors. Bribery had a clear meaning.
If the House believes that the president solicitated something of value in the form of investigations or an announcement of investigations, and that he did so corruptly for personal gain, then that would constitute bribery under the meaning of the Constitution, and it would not be lawless. It would be bribery under the law.
NADLER: So, the -- so the Supreme Court case in McDonald interpreting the federal bribery statute and other decisions interpreting the statutes would not be relevant?
FELDMAN: The Constitution is the supreme law, and the Constitutions specifies what bribery means. Federal statutes can't trump the Constitution, they can't defeat what's in the Constitution.
NADLER: Thank you. Professor Gerhardt, would you respond to Professor Turley's comments about obstruction of justice or obstruction of Congress, please?
GERHART: Yes. An obstruction of justice, one thing I want to emphasize is, obstruction of justice is not just about obstruction of a court, it's an obstruction of any lawful proceeding. And so, that obstruction isn't limited to whatever is happening in the courts, and obviously here, there are judicial proceedings going on, but there's also a really critical Congressional proceeding, which brings us to obstruction to Congress.
With obstruction of Congress I don't think -- in fact, I can say, I know there's never been anything like the president's refusal to comply with subpoenas from this body. These are lawful subpoenas. These have the force of law to them. These are the things that every other president has complied with and actually acted in alignment with, except for President Nixon in a small, but significant set of materials.
NADLER: Professor Turley implied that as long as the president asserts a fanciful, ultimately non-existent like absolute immunity, he can't' be charged with obstruction of Congress, or because, after all, it hasn't gone through the courts yet. Would you comment on that, Mr. Gerhardt?
GERHARDT: I'm sorry, I missed part of the question. Please -- I'm sorry. Forgive me.
NADLER: Professor Turley implied that we can't charge the president with obstruction of Congress for refusing all subpoenas, as long as he has any fanciful claim, until the courts reject those fanciful claims.
GERHARDT: I have to respectfully disagree. No, his refusal to comply with those subpoenas is an independent event. It's a part from the courts. It's a direct assault on the legitimacy of this inquiry, which is crucial to the exercise of this power.
NADLER: Thank you. Professor Karlan, I'll give you a chance to respond, if you would like as well, to the same question.
KARLAN: I wanted to respond to the first question about bribery, if I could --
NADLER: Yes, go ahead.
KARLAN: -- instead, which is, although Counsel for the minority read Samuel Johnson's definitions of high and crime and misdemeanor, he didn't read the definition of bribery. Now, I didn't have -- I have the 1792 version of Johnson's dictionary, I don't have the initial one, and there he defines bribery as the crime of giving or taking rewards for bad practices. And so if you think it's a bad practice to deny military appropriations to an ally that have been given to them, if you think it's a bad practice not to hold a meeting to buck up the legitimacy of a government that's on the frontline and you do that in return for the reward of getting help with your reelection, that's Samuel Johnson's definition of bribery.
NADLER: Thank you and Professor Feldman, if Washington were here today, if he were joined by Madison, Hamilton and other framers, what do you believe they would say if presented with the evidence before us about President Trump's conduct?
FELDMAN: I believe the framers would identify President Trump's conduct as exactly the kind of abuse of office high crime and misdemeanor that they were worried about and they would want the House of Representatives to take appropriate action and to impeach.
NADLER: And they would find obstruction of justice, obstruction of Congress and abuse of power or some of them?
FELDMAN: I believe that if the evidence supported those things in their minds and if the Congress determines that that is what the evidence means then they would believe strongly that that's what Congress ought to do.
NADLER: Thank you. I'll yield back my time -- the balance of my time. I'll now recognize the Ranking Member of the Judiciary Committee, the gentleman from Georgia, Mr. Collins, for five minutes for questioning the witnesses.
COLLINS: This just keeps getting more amazing. I think we just put in the jury pool the founding fathers and said what would they think? I don't think we have any idea what they would think in all due respect with this because of the different items, the different things we've talked about but also to -- to in some way insinuate on a live mic with a lot of people listening, the founding fathers would have found President Trump guilty is just simply malpractice in this -- with these facts before us. That is just simply pandering to a camera. That is simply just not right.
I mean this is amazing. We can disagree. What's amazing on this committee is we don't even disagree on the facts. We cannot even find a fact right now where it's not going through the public testimony and also even the transcripts and all. It is not. Mr. Turley, are we going to deputize somebody between now and the founders into the jury pool here?
TURLEY: Well, first of all only I will speak for James Madison.
No, no we all will speak for James Madison with about the same level of accuracy. It's this form of necromancy that -- that academics do all the time and that's what we get paid for. But I just want to note a couple of things. First of all I do find it rather surprising that you would have George Washington in this jury pool. I would strike him for cause. George Washington was the first guy to raise extreme executive privilege claims. He had a rather robust view of what a president could say. If you were going to make a case to George Washington that you could impeach over a conversation he had with another head of state, I -- I expect his hair -- his powered hair would catch on fire.
Also I just want to note one other thing and I am impressed with carrying an 18th Century copy of Samuel Johnson with you.
LOFGREN: It's the online version.
TURLEY: Oh, it's just the online version. You -- you as an academic I was pretty darn impressed. I -- the -- I just want to note one thing which may explain part of our difference. The statutes today on bribery are written broadly just like they were back then. That was my point. The meaning of those words are subject to interpretation. They're written broadly because they don't want them to be too narrow. That was the case in the 18th Century as they are today but the idea that bad practices could be the definition of bribery, really? I mean is that -- is that what you get from the Constitutional Convention that bad practices -- is that why -- is that why Mason wanted to put in maladministration, because bad practices is not broad enough? This is where I disagree.
You know the other thing that I just wanted to note is and I have so much respect for Noah(ph) and I'm just going to disagree on this point, I feel it is a rather circular argument to say, well the Constitution is law; upon that, we are in agreement.
But the Constitution refers to a crime to say well, you can't trump the Constitution because it defines the crime. It doesn't define the crime. It references the crime. Now the crime, the examples were given during the Constitutional Convention and those do not comport with bad practices. They comport with real bribery but to say that the Supreme Court's decision on what constitutes bribery is somehow irrelevant is rather odd. What the Constitution contains is a reference to a crime and then we have to decide if that crime has been committed.
COLLINS: And I think one of the things that came out just a second ago was also this discussion of, you know, and we had had this discussion earlier about is it the presidential prerogative and also members of the president's cabinet to assert privileges and rights and we talked about the fast and furious with President Obama. Remember Attorney General Holder was held in contempt by this body for withholding and not complying with subpoenas.
I mean you just can't pick and choose history here with what you want to have but I think also you just made a statement and it was brought up earlier, talking about bad practice. It is also the law of the land that we are supposed to ensure that countries given aid are not corrupt and I think this is also the something that's missing from this discussion is well, if there -- the president has had a long ceded distrust of foreign companies, especially Ukraine and others with a history of corruption. I made this statement earlier, it's in the report from the HIPC side on our side, 68 percent of those polled in the Ukraine over the previous year had bribed a public official.
Ukraine had corruption issues. It came back from the Obama Administration. It came through the Trump Administration and our rule is that they have to actually look at the corruption before giving taxpayer dollars. The president was doing that and now it has been blown up because we've now found in this hearing today, facts really don't matter if we're trying to fit it into a law or fitting into a breaking of rule that we want to impeach on. And as I've said, the reason we're doing this is the train is on the track. This is a clock- calendar impeachment, not a fact impeachment. I yield back.
NADLER: The gentleman yield -- the gentleman yields back. I now recognize Ms. Lofgren for five minutes.
LOFGREN: Thank you Mr. Chairman. This as has been mentioned, only the third time in modern history that the committee has assumed the grave responsibility of considering impeachment and oddly enough I've been present at all three. I was staff of Congressman Don Edwards during the Nixon impeachment, present on the committee during the Clinton impeachment and here we are today. At its core, I think the impeachment power really is about the preservation of our democratic systems and the question we must answer is whether the activity of the president threatens our Constitution and our democracy and it's about whether he's above the law and whether he's honoring his oath of office. Now the House Judiciary Committee staff and it wasn't me, it was other staff, wrote an excellent report in 1974 and this is what they said. Impeachment of a president is a grave step for the nation. It is to be predicated only upon conduct seriously incompatible with either the Constitutional form in principle of our government or the proper performance of constitutional duties of the presidential office. And I'd ask unanimous consent to enter the House Judiciary Committee report on Constitution grounds into the record.
NADLER: Without objection.
LOFGREN: Thank you Mr. Chairman. Now like President Nixon, the allegations against President Trump involve serious election-related misconduct. Nixon's associates burglarized the DNC headquarters to give him a leg up in his election. Nixon tried to cover up the crime by obstructing federal and Congressional investigations. He also abused his powers to target his political rivals and here we're confronted with evidence suggesting that President Trump tried to leverage appropriated military assistance to resist Russian by Ukraine to convince a foreign ally to announce an investigation of his political rival. Professor Karlan, I'd like you to tell me your view on how President Trump's conduct, meaning his request of the foreign ally to announce an investigation of his adversary. How does that compare to what President Nixon did?
KARLAN: Not favorably. Because as I suggested in my opening testimony it was a kind of doubling down because President Nixon abused domestic law enforcement to go after his political opponents. And what President Trump has done, based on the evidence that we've seen so far is he's asked a foreign country to do that. Which means it's not, it's sort of like a daily double, if you will of problems.
LOFGREN: Professor Gerhardt, do you have an additional comment on that?
GERHARDT: I certainly would agree with Professor Karlan. Yes, I think the difficulty here is we need to remember that impeachable offenses don't have to be criminal offenses, as you well know. And so what we're talking about is an abuse of power. We're talking about an abuse of power that only the President can commit. And there was a systematic concerted effort by the President to remove people that would somehow obstruct or block his ability to put that pressure on Ukraine to get an announcement of an investigation. That seems to be what he cared about. Just the mere announcement, that pressure produced, was going to produce the outcome he wanted until the whistleblower put a light (ph) on it.
LOFGREN: I want to go back to, quickly to something Professor Turley said. As we saw in the Meyers (ph) case and I was a member of the Committee when we tried to get her testimony as well as the Fast and Furious case which also was wrongfully withheld from the Congress.
Litigation to enforce congressional subpoenas can extend well beyond the terms of the presidency itself. That happened in both of those cases.
Processor Feldman, isn't it, as Professor Turley seemed to suggest, an abuse of our power not to go to the courts before using our sole power of impeachment in your judge?
FELDMAN: Certainly not. Under the Constitution, the House is entitled to impeach. That's its power. It doesn't have to ask permission from anybody. And it doesn't have to go through any judicial process involving a judiciary branch of government. That is your decision based on your judgment.
LOFGREN: Thank you.
I'd just like to note that this is a not a proceeding that I looked forward to. It's not an occasion for joy. It's one of solemn obligation. I hope and believe that every member of this committee is listening, keeping an open mind, and hoping that we honor our obligations carefully and honestly.
With that, I yield back, Mr. Chairman.
NADLER: The gentlelady yields back. The gentlelady yields back.
We are expecting votes on the House floor shortly, so we will recess until immediately after the conclusion of those votes.
I ask everyone in the room to please remain seated and quiet while the witnesses exit the room.
I want to remind members of the audience that you might not be guaranteed your seat if you leave the hearing room at this time.
JAKE TAPPER, CNN HOST: I'm Jake Tapper. You're watching CNN's special coverage of the historic impeachment inquiry into President Trump.
Today, the process entered a new phase. The House Judiciary Committee held its first hearing as the committee decides whether President Trump's actions rise to the threshold outlined in the Constitution of high crimes and misdemeanors.
Four witnesses, all constitutional scholars, gave their views. Three of the scholars support impeaching President Trump, one does not. All of them offering their expertise during today's hearing.
Professor Noah Feldman was one of the individuals. I just want to run a quick sound byte of Noah Feldman talking about his views.
(BEGIN VIDEO CLIP)
NORM EISEN, DEMOCRATIC COUNSEL: Professor Feldman, did President Trump commit the impeachable high crime and misdemeanor of abuse of power based on that evidence and those findings?
FELDMAN: Based on that evidence and those findings, the president did commit an impeachable abuse of office. EISEN: Professor Karlan, same question.
PAM KARLAN, PROFESSOR OF LAW, STANFORD LAW SCHOOL: Same answer.
EISEN: Professor Gerhardt, did President Trump commit the impeachable high crime and misdemeanor of abuse of power?
MICHAEL GERHARDT, PROFESSOR OF LAW, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW: We, three, are unanimous, yes.
(END VIDEO CLIP)
TAPPER: Yet, Jeffrey Toobin, we just heard, when Republicans had the opportunity to ask questions, a lengthy monologue from their witness, the Republicans' witness, Professor Jonathan Turley, saying that he does not think that, as of now, anything has been proven that rises to the level of high crimes and misdemeanors.
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Right. What I thought was interesting about Professor Turley's testimony was his confidence that there was not enough evidence yet, that the Democrats are rushing this process, that they should get more evidence if they want to do something as profound as impeaching a president.
What I thought was missing from his testimony was any acknowledgement at all that the Democrats have tried to get a lot of this evidence. They have subpoenaed witnesses. They have sought documents. They have sought e-mails. And they have not been denied piecemeal. They have not been said, you can this but not that. They have been told, you can have nothing, which is unprecedented in American history.
Richard Nixon, when under impeachment investigated, cooperated with the investigation. He didn't cooperate entirely. But Bill Clinton cooperated.
But the idea that you can stonewall about every single piece of evidence and then have it held against you, as Congress, that you haven't gotten enough evidence is really a pretty extraordinary position.
JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: I'm not a lawyer but what does it tell you when the Republican witness is not saying the president did nothing wrong. He's not saying the Democrats have proven nothing.
He is saying you're disrespecting the courts. You should wait longer and litigate this. And he actually said you might get there. You're not there yet, in his view, in terms of because you don't have evidence or direct testimony from someone who could say the president told us to do this and the president said it would benefit him politically.
Because, to Jeff's point, they won't let Secretary Pompeo cooperate. They won't let Mick Mulvaney, the acting chief of staff, who was key to the budget decision in withholding the aid, go up, and other officials.
But the Republican witness is not saying the president is innocent. He is saying that I think you're rushing this. And until you get the firsthand witnesses who were in the room with the president, that's just wrong.
TAPPER: Dana, let me ask you, because we were talking about this during the hearing, which is, Democrats have not really argued this, at least not effectively, which is you're talking about that they were rushing it. That's what the Democrats are saying. But you're not even agreeing that we should get these witnesses that could shed more light on it.
It was suggested that Nadler, if perhaps he were more agile, could have said, guys, I'll agree right now to delay this for three weeks if you all agree unanimously to subpoena Pompeo, Mulvaney, Giuliani, et cetera.
DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: That would have been a great moment. He didn't take it. There might be a good illustration why the meat of the hearings took place in another committee.
Is that diplomatic enough for you?
BASH: But it's very true. At the end of this process, or as we get closer to the end of this process, we're going to see in the form of an article of impeachment that that's exactly why they're saying that they're moving forward.
One thing, just up on what John was saying, what Turley did in not defending the substance of what the president did, is probably more of what we're going to hear, as this moves into the Senate, from Senate Republicans, who are less rapid in their defense of the president. Not all of them but some of them. And are likely to make the case, just like he did, that the process moved too fast, that we wish we could hear from more people, as they very likely will say, I'm going to vote no and let my constituents decide.
I think that was kind of a road map for those Senate Republicans.
TAPPER: We've heard a lot today -- Andy McCabe, former acting director of the FBI, former deputy director of the FBI. We've heard a lot today about whether or not what President Trump rises to the criminal statute of bribery. Turley saying no way does it rise to that level. And the Democratic called constitutional scholars disagreeing, saying it clearly does.
As a former law man, based on the evidence we have, not what we think happened or not what we suspect happened, but based on the evidence, would you feel comfortable taking this to a U.S. attorney or a prosecutor and saying here's what we got?
ANDREW MCCABE, CNN CONTRIBUTOR: I'd feel confident taking it to a U.S. attorney. I know many U.S. attorneys that would take this case, move forward and charge it.
Look, the case is based on a number of strengths. You have several great witnesses, people who are credible, people who have great recollection, and are able to relate those stories in a compelling way. Their stories sync up with each other.
You have independent verifiable records, like the infamous text messages that tells you about what people are actually doing on the ground at the time. It's an insight into their motives, into what they were trying to accomplish. You have additional records now that we've seen with the HPSCI report yesterday, the toll records --
TAPPER: HPSCI is the House Intelligence --
MCCABE: That's right.
Although, the toll records don't give us content of communications, they're great association evidence. They show you the actual group of people, or coconspirators if you were trying to charge a conspiracy, that are actually engaged in this activity.
That said, every case has weaknesses. It just so happens that, in this case, all of the weaknesses, the key witnesses that you'd like to hear from, the key documents you'd like to receive from the agencies, those are all weaknesses that have been created by the subject of the investigation in what Congress argues are acts of obstruction.
And there's no way we would let that stop us from charging a case.
TAPPER: Jen Psaki, one of the points that Jonathan Turley, the Republicans' witness, was making was that he thinks the public needs to be brought along on something like this. He referred to maturation, the need for the case to mature so people hear it. It has been relatively quick, two and a half months.
Are you concerned, as a Democrat, as somebody who I believe supports impeaching President Trump -- am I correct about that?
JEN PSAKI, CNN POLITICAL COMMENTATOR: Yes.
TAPPER: The public needs to be brought along even more. I think what we have right now is narrow support for impeaching President Trump and removing him from office nationwide. And narrow opposition in the key battleground states.
PSAKI: Sure. One of the things he said was incorrect. A few things were incorrect. But on the timeline, I'll let Jeffrey Toobin check me here. But the Clinton impeachment was about 72 days, I believe. It wasn't dramatically longer than what we're looking at here. This isn't actually a record short length of time for an impeachment.
You know, the Democrats are obviously making a calculation here that their timeline they're also looking at is the Iowa caucuses. They're looking at an election year. They know they have the votes to move forward with impeaching the president.
What they're most focused on now is bringing the public along. But a secondary and equally important goal of theirs is to make sure they go into Christmas impeaching the president with a view from the public that they've conducted themselves in a professional manner, in a classy manner, prevented things from becoming a circus because they want the public to believe that as well.
I will say on the polling though, because there's often an assumption or claim -- I'll let you claim this, Scott if you want to -- that the polling has dropped for support. The jump was actually right around when Nancy Pelosi announced she was going to move forward with impeachment proceedings.
It did surprise the Democrats, myself, I think many people, there wasn't a jump after the hearings. But maybe that means the hearings aren't where the jump is. Maybe when the impeachment happens, there could be a jump.
So we'll see. I think it's a little too early to predict how the public digests all of the events in the next few weeks.
TAPPER: Scott Jennings, one thing we haven't heard from a lot of Republican lawmakers is kind of the position taken by their witness, Jonathan Turley, who has said that the call was far from perfect and has suggested that maybe more evidence would be more damning for President Trump.
Do you think that when -- when and if, I should say -- but we all thing Congress will impeachment him -- that when and if this goes to the Senate, that there are Republican Senators who would like a third option, who would like there to be a censure measure so they could condemn what the president did but not remove him?
SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: I don't know if they would like a third option. I don't know that they would take any joy in that. But I think under the current construct of the binary argument of acquit or convict, I know what they're all going to do.
That's one of the things Turley I thought did very effectively today in some of his opening testimony. And I also thought he did a very good job of laying out, on the bribery issue, why they are not there yet, and also admonishing Democrats on waiting on the courts and not rushing it.
I thought putting all that together -- you might hear some of that from the Senate Republicans. I don't know that any of them would vote for censure. I don't know that. But I know that we would come closer to getting people to getting on top of that far sooner than you would ever see them coming anywhere near wanting to throw a president out over what has been presented so far.
TAPPER: And, Jeffery Toobin, do you think that's something that Senate Republicans and Democrats should consider the idea that if this is, in fact, something that people take seriously that -- look, we all know President Trump asked a foreign leader to investigate a political opponent. That's a fact. It's uncontested. The question is whether or not that's acceptable and whether there's a quid pro quo.
TOOBIN: I don't know if it's a good idea or not. It's not really my place to say.
What it is my place to say is Mitch McConnell will never allow --
TOOBIN: -- a censure vote in the Senate.
TOOBIN: Because the president of the United States is saying over and over again, I don't want a censure, I didn't do anything wrong, the phone call was, as we all know, perfect.
Mitch McConnell doesn't do anything to get out of sorts with the president.
BASH: You know what's so great? We have somebody who worked with -
JENNINGS: What he would probably say is, look, I'm waiting to see what the House is going to do. Your question is a hypothetical. What if we have this? We're not going to have this. The Democrats are going to impeach. They have decided to put this thing in a binary choice. And that's what the Republicans in the Senate will be presented with. And that's what they'll ultimately have to vote on.
So I think today --
TOOBIN: Wait a second. Wait a second. So that was an artful political answer non-answer. Do you think Mitch McConnell would ever put a censure resolution --
TAPPER: Central resolution.
TOOBIN: -- on the floor of the Senate?
JENNINGS: I think it's doubtful that Senate Republicans would entertain that because that's not what's going to happen. What's going to happen is an impeachment trial. And that's going to come and go and they're going to vote to not convicted the president. So --
KING: In the current environment, there's no way.
JENNINGS: And there will be no --
KING: If the polling changed, if Susan Collins and Cory Gardener rushed into his office saying, sir, we have a problem, then you would have a meeting to talk about it.
BASH: Or if John Bolton showed up at the Senate trial and --
BASH: -- information and evidence bomb on the floor, that could potentially.
KING: But where we sit today, with split public opinion, that means the political people can do this better than me.
KING: That means you fight it out in the campaign.
KING: There's no huge --
JENNINGS: I think Republicans are fine to argue that. Look, you guys want to impeach him, we don't. Let's let the American people have an input on this. That's been an argument that some Republicans have made. I suspect more will make it. I don't think they'll have any trouble making that going forward.
TAPPER: All right, everyone, stick around. We're going to have a lot more.
We're going to squeeze in a quick break. We'll be right back.
TAPPER: Welcome back. Let's continue to chew over what we've heard so far in the House Judiciary Committee's open hearing with four constitutional scholars, three by Democrats, one by Republicans, talking about whether they thought President Trump's actions regarding the Ukraine scandal have risen to the level of a high crime or misdemeanor as called for by the Constitution.
One thing came up a few times -- and I'll run sound from the hearing -- is the Mueller report, which, obviously, Democrats did not hold impeachment hearings over and, yet, it casts a very long shadow. Take a listen.
(BEGIN VIDEO CLIP)
GERHARDT: The Mueller report cites a number of facts that indicate the president of the United States obstructed justice, and that's an impeachable offense.
KARLAN: I see a pattern in which the president's views about the propriety of foreign governments intervening in our election process are the antithesis of what our framers were committed to. Our framers were committed to the idea that we, as Americans, we, as Americans, decide our elections.
EISEN: Professor Feldman, you were somewhat of an impeachment skeptic at the time of the release of the Mueller report. Were you not?
FELDMAN: I was.
EISEN: What's changed for you, sir?
FELDMAN: What changed for me was the revelation of the July 25th call and then the evidence that emerged substantively of the president of the United States, in a format heard by others and now known to the whole public, openly abused his office by seeking a personal advantage in order to get himself re-elected, an act against the national security of the United States.
(END VIDEO CLIP)
TAPPER: This is significant, not just because obviously it was a momentous time and period in report, but also, John King, because there are a lot of people, Adam Schiff, Democratic chairman of the Intelligence Committee, who feel that they need to impeach President Trump, although Schiff has not officially come out in favor of impeachment, because they feel this July 25th phone call with the president of Ukraine in which the president, in their view, is abusing his power.
This happened one day after Bob Mueller testified and it became clear President Trump was not going to get impeached. They need to stop him. That's they're view.
KING: Yes. Adam Schiff makes the case what the president viewed what happened with Mueller as an exoneration. We could debate that until the end of time. But the president viewed that as an exoneration and said, no holds barred. Let's pick up the phone and do it again. So that's one case of the Democrats.
But the invocation of the Mueller report is also interesting as even just Democrats on this committee and larger Democratic caucus have a decision to make.
KING: Do you write three or four, two or three narrow articles of impeachment based mainly on the Ukraine call as abuse of power, bribery, call it what you will, then obstruction of Congress, maybe obstruction of justice, stop, with footnotes about Mueller saying it fits a pattern by the president but not specific articles of impeachment that have anything to do with the Mueller report.
There are more liberal members who say, no, stretch it out. Let's do six or seven articles. Let's take the second chapter of the Mueller report, the obstruction cases, and pick a few articles of impeachment. That's not where the speaker is or Adam Schiff is now but some in the party who will argue for that.
How they handle that in this first hearing and the other Judiciary hearings as they go forwardly will give a sense how much that push among Democrats to broaden it out is.
BASH: Not necessarily liberals. Gerry Connolly, of the district in the northern Virginia, is more liberal now but it was a swing district when he was first elected. He's told me he and others that he fundamentally wants Mueller included, the obstruction charge, vis-a- vis Russia, should be included. And it is an active debate.
What the people who don't want it in there argue is it's just less clean and that Ukraine is something that the Democratic leadership, in particular, feel people can understand. They can digest it. It is clear-cut from their perspective. And when you get into Mueller, you get into something a lot more murky when it comes to public opinion in politics.
TAPPER: As a legal matter, Jeffrey Toobin, does it matter?
TOOBIN: You know, the quote that everyone, all the law professors hate but is a really useful quote about impeachment comes from Gerald Ford when he was the House minority leader in 1960s and he led an unsuccessful attempt to convict -- to impeach William O. Douglas, who was a Supreme Court justice at the time. And Ford said, an impeachable offense is what the majority of the House of Representatives thinks is an impeachable offence. That was true then, it's true now.
Now there are limits, obviously. The Constitution says high crimes and misdemeanors. But how you define impeachable offenses is always going to be essentially a political judgment. That's what Ford was talking about. That's why Nancy Pelosi has been hesitating about timing here.
And also this issue of scope. Do you include the obstruction of justice that Mueller identified in the obstruction of Congress that Mueller talked about? That's a profound issue that, as far as I can tell, is completely unresolved within the Democratic caucus.
TAPPER: As a law enforcement member, what do you think? Is it better to have a clean Ukraine-focused impeachment, even though it's a political decision not a law enforcement one, or do you think expanded to include the previous allegations of obstruction of justice?
MCCABE: Well, I have great respect for the work of the special counsel team. I think that the report is -- clearly lays out at least eight different categories of obstructive activity in which the team concluded that they've met all elements of the offense with the evidence before them.
However, dragging that into this impeachment effort opens the door to every defense that the Republicans and the president have successfully and I think effectively laid out there in response to the Mueller report.
So you leave the realm of the simple and the clear-cut and you really, I think, open a can of worms that the Democrats will have a hard time answering.
The other problem -- and this to tail on to one of your points, John. I think Chairman Schiff laid out very effectively in the House Intel report that one of the reasons for proceeding so quickly is because the president engaged in this alleged second act of inviting foreign interference in the election on the heels of the Mueller report. And that creates an imperative threat that we need to resolve through the impeachment process right away before it happens again.
I think that's probably the most effective responses to some of what Professor Turley laid out today.
To drag in Mueller, you start to I think cut against the imperative of that it's important to move quickly.
TAPPER: Scott and then John?
JENNINGS: I don't know what they're going to lose. I mean, they're not going to get any Republican votes for impeachment now. They're not going to get any conviction votes in the Senate I don't think. What do you have to lose by throwing in everything you wanted to impeach him through --
KING: Maybe 10, 12 hard House seats?
JENNINGS: I disagree. I disagree. They're already in the bucket here. They're already --
JENNINGS: -- they're already down this road. By throwing on a few more articles of impeachment that truly scratch the issue -- also, if you're making the argument that you have to impeach him to prevent these kinds of calls from happening in the future, why doesn't that argument apply to the Mueller report? If you don't put the Mueller report in, are you saying, that's OK but the Ukrainian call's not OK? I have never believed they would stop at Ukraine because, A, they have
no prayer of convicting the president anyway and, B, I think their members actually think those things are just as impeachable as this issue.
TAPPER: Jen --
PSAKI: I would say they would be very wise to keep this narrow. If you're Nancy Pelosi and you're looking at the politics of your members and their re-elections, you're looking at, yes, it would be great if John Bolton comes and there's a big earth-shattering moment in the Senate. But in all likelihood, President Trump will not be convicted in the Senate.
You need to come out of that strong. And how they've come out and strengthening themselves now is by keeping this narrow. They should continue to do that moving forward.
TAPPER: Everyone, stick around. We'll talk about --
TAPPER: Stay there. Stay there. We'll come back to you.
We're waiting for members of the House Judiciary Committee to return from votes and continue this hearing.
CNN special breaking news coverage continues after this quick break.