How constitutional scholars talk when they talk about the Constitution

The impeachment inquiry into President Donald Trump is moving into its next phase as the House Judiciary Committee holds its first hearings. Chris Cillizza answers all your impeachment questions here to help you navigate the unfolding events.

Posted: Dec 4, 2019 2:20 PM
Updated: Dec 4, 2019 9:30 PM

They brought solemn warnings but were ready to crack wise. They quoted the Constitution's framers, Sir Thomas More and contemporary pols. They invoked everyday hypotheticals but also a supposed afterlife conversation with Alexander Hamilton. And as they expressed anger and fear, they wove in personal tales of a mail-order Thanksgiving turkey and an unhappy goldendoodle.

It was Con Law 101 or, in the parlance of today's popular instructional manuals, Impeachment for Dummies, offered by four law professors known for distilling difficult concepts to academic audiences and a broader public through their commentary and analysis.

Even if their testimony on Wednesday changed not one mind on polarized Capitol Hill, their explications offered a national television audience a short course in the constitutional provision dictating that a president may be removed from office through House impeachment and Senate conviction for 'Treason, Bribery, or other high Crimes and Misdemeanors.'

The professors were divided in their assessments of whether President Donald Trump should be impeached for his dealings with Ukraine. For impeachment were Harvard's Noah Feldman, University of North Carolina's Michael Gerhardt and Stanford's Pamela Karlan, all invited by the committee's Democratic majority. Speaking against a Trump impeachment was George Washington University's Jonathan Turley, selected by the Republican minority.

Yet all four were united in a message about the weight of the moment: However the US House of Representatives acts on the presidential matter at hand, it will affect America's constitutional checks and balances for decades to come.

They all also understood they had to make their arguments as accessible as they were urgent. They streamlined their renditions of history and sprinkled their remarks with analogies and pop culture references. By and large, they avoided legal jargon and dense responses.

Karlan tried to bring closer to home the claims that Trump wanted to trade US security assistance to Ukraine for an investigation into former Vice President Joe Biden, a possible Democratic rival to Trump's reelection, and Biden's son Hunter.

'Imagine living in a part of Louisiana or Texas that's prone to devastating hurricanes and flooding,' Karlan said. 'What would you think if, when your governor asked the federal government for the disaster assistance that Congress has provided, the President responded, 'I would like you to do us a favor. I'll meet with you and send the disaster relief once you brand my opponent a criminal.' Wouldn't you know in your gut that such a President had abused his office?'

Gerhardt, who is also a CNN contributor, argued that it would not matter that a presidential scheme was not fully executed, just as a bank robber who drops the money as he flees the scene would still be responsible for an offense.

All told, there was no professorial hemming and hawing, no on-the-one-hand and on-the-other. The four were forceful in their positions and not cowed by questioning from House members who opposed witnesses' views.

In the professors' day jobs, they face the challenge of engaging drowsy students. On Wednesday, they faced cameras, banks of microphones and more than eight hours or scrutiny.

'We got law professors here,' Georgia Republican Rep. Doug Collins said with evident sarcasm early on. 'What a start of a party.'

'No one is king'

Wednesday's session marked the start of the House Judiciary Committee's role in the impeachment inquiry, following the House Intelligence Committee hearings and newly issued report. Under the Constitution, the House has the sole power to impeach a President. If that occurs, it is the responsibility of the Senate to hold a trial to decide to convict or acquit the President of impeachment charges.

An overriding point of contention is whether Trump's conduct rises to the level of an impeachable offense, a debate tailor-made for law professors.

Sitting at a long wooden desk, the four beckoned their audiences back to the Constitutional Convention of 1787 and the roots of why the framers even wrote an impeachment provision into the Constitution. It was, in the words of one founder, 'an essential security for the good behavior of the Executive.'

Feldman spoke emphatically, looking from one side of the committee dais to the other as he addressed House members. As abstract as any of the impeachment terms might seem today, he observed, 'the words high crimes and misdemeanors represented very specific language that was well understood by the entire generation of the framers ... borrowed from an impeachment trial in England that was taking place as the framers were speaking.'

He said the words referred 'to the abuse of the office of the presidency for personal advantage, or to corrupt the electoral process, or to subvert the national security of the United States.'

Turley, the witness called by the Republican members, said he believed the evidence against the President had come up short for impeachment. He warned that the current ordeal would shape the power of presidents for generations, and he stressed that he was not a supporter of Trump.

The Democratic witnesses especially highlighted the founders' worries of foreign interference and fear of the absolute power held by the crown. 'Our hearing today should serve as a reminder of one of the fundamental principles that drove the founders of our Constitution to break from England and to draft their own Constitution,' Gerhardt said. 'The principle that in this country, no one is king.'

Feldman added that an abuse of office occurs 'when the President uses a feature of his power ... not to serve the interests of the American public but to serve his personal, individual, partisan electoral interests.'

All four tried to leaven the heavy historical citations, sometimes with references to their families or even meals. Karlan said she had spent her Thanksgiving vacation poring over materials related to the impeachment inquiry, eating a pre-cooked turkey that arrived in the mail.

In her opening comments, she chastised Collins for presuming the law professors had not read the House Intelligence Committee report that had been released a day earlier: 'I would like to say to you, sir, that I read transcripts of every one of the witnesses who appeared in the live hearing because I would not speak about these things without reviewing the facts, so I'm insulted by the suggestion that as a law professor I don't care about those facts.'

Her remarks were, by turns, fiery, folksy and edgy. She has a reputation for lacing her legal arguments with popular references. FOr example, in October, when she argued a case before the Supreme Court on behalf of gay workers who had been fired, she referred to a 'Saturday Night Live' sketch.

At one point in Wednesday's hearing, she appeared to cross a line. Observing that the Constitution disallows any titles of nobility, she said, 'the President can name his son Barron, but he can't make him a baron.' First lady Melania Trump condemned Karlan on Twitter as infringing on her son's privacy and, at the hearing, Florida Republican Rep. Matt Gaetz told Karlan the remark made her 'look mean.' Karlan apologized later in the hearing.

Turley may have best captured the mood in the room and in America.

'I get it,' he said, as he tried to make the case that the House impeachment moves were premature. 'You are mad. The President's mad. My Republican friends are mad. My Democratic friends are mad. My wife is mad. My kids are mad. Even my dog seems mad, and Luna is a goldendoodle and they don't get mad. We are all mad -- and where has it taken us?'

But anger cannot justify an impeachment, Turley said: 'Will a slipshod impeachment make us less mad? Will it only invite an invitation for the madness to follow in every future administration? That is why this is wrong.'

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