Today, Explained - Impeachment TV: Law & Disorder

Episode Date: December 4, 2019

Four law professors walked into a room and the next phase of the impeachment began. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Andrew Prokop, Vox, do me a favor and walk me through the last 24 hours in impeachment, because it feels like they've been a very big 24 hours. Tuesday afternoon is when Representative Adam Schiff, chair of the House Intelligence Committee, finally released his report on all of his findings in the impeachment inquiry so far. This report chronicles a scheme by the president of the United States to coerce an ally, Ukraine, that is at war with an adversary, Russia, into doing the president's political dirty work. There is some new stuff in that they got a hold of phone records for, it seems, Rudy Giuliani, Trump's personal lawyer. And they often cite these phone records to fill in the timeline of key events and what happened.

But the big picture is that this is Schiff's attempt to weave it all together. It involves a scheme in which Donald Trump withheld official acts at White House meeting, as well as hundreds of millions of dollars of needed military assistance in order to compel that power to deliver two investigations that he believed would assist his reelection campaign. And his narrative is divided into two parts. The first is what he calls misconduct, which are the basic facts of the Ukraine scandal itself. The second part that Schiff focuses on is obstruction. And I want to underscore also the seriousness of this misconduct.

The president instructed witnesses not to appear. The president used his office and his bully pulpit to try to intimidate witnesses. If the Congress allows a president to so fully and blanketly obstruct the work of Congress, even involving an impeachment investigation, into the president's own misconduct, then we are begging for more of the same. And this moment was a passing of the baton, so to speak, because Schiff is kind of closing out his own committee's work. He says he's still going to do a little bit,

but the main action is now shifting. Oops. Keeping it. Because the main action is now shifting to the House Judiciary Committee under Jerry Nadler. Which brings us to today. How does the Judiciary Committee differ from the House Intelligence Committee, where we've been spending so much time recently? There's a bunch of brawlers sometimes on the Judiciary Committee. So it should get much more feisty, I would say, than the Intel Committee was. So this is the committee chaired by Representative Jerry Nadler of New York, and it will be their job to actually draw up the articles of impeachment based on Schiff and the Intelligence Committee's

findings. And one interesting thing about this transition is that there's a bit of trepidation about it from Democrats because Nadler's Judiciary Committee has had some high-profile hearings already this year. And the general consensus is they haven't gone that well for Democrats. Do you not have an independent recollection of whether you met with the president on that date? Congress, I'm just trying to find in the Mueller report where it states that. Well, you have it in front of you. I gave you the page number. Where on page 90 is it, sir? Mr. Chairman, you've got to start the clock. No, I don't have to start the clock.

He's filibustering. Bottom of page 90. Filibustering is a different issue. That's across the hall in the Senate. This is actual questions being done now. Mr. Chairman, point of parliamentary inquiry, Mr. Chairman. So I think the big question going into today for Nadler was whether he helped by this new material, helped by a new format in which committee staff lawyer would get to do a big chunk of the questioning rather than just switching right away to members. Whether he would be more effective with this new setup. So Nadler opened up today with some boilerplate on why we were all here.

This committee has voted to impeach two presidents for obstructing justice. But never before in the history of the republic have we been forced to consider the conduct of a president who appears to have solicited personal political favors from a foreign government? Then it went to the committee's Republican ranking member, Doug Collins, who was very fiery and upset. There are no set facts here. In fact, there's not anything that presents an impeachment here.

So the interesting thing that I come to with most everybody here is this may be a new time, a new place, and we may be all scrubbed up and looking pretty for impeachment. But this is not an impeachment. This is just a simple railroad job. Collins, as has been his shtick at these hearings all year, pretended to be extremely, extremely upset about various procedural things related to the hearing, but none of it seemed very convincing. It seemed like right out of the gate, Republicans didn't even really want to be there. There was literally a motion to delay to a later date. May we have the motion read, please? The motion will be read as to what date. When you're in the minority in the House,

one of the few things you can do is to try to make a procedural ruckus at hearings by demanding votes on certain motions or trying to talk over the majority. And Republicans really leaned into that at this hearing. I think generally it was just a delay tactic. Miss Jackson-Lee votes aye. Miss Jackson-Lee votes aye. Mr. Cohen? And it worked. I mean, those roll call votes. Mr. Cohen? Aye. And it worked. I mean, those roll call votes took forever. It was painful. There's like 40 people on the committee.

Mr. Doits votes aye. Ms. Bass? Aye. Ms. Bass votes aye. Mr. Richmond? Yes. Mr. Richmond votes yes. Mr. Jeffries?

Aye. Mr. Jeffries votes aye. Mr. Cicilline? Aye. Mr. Cicilline votes aye. Mr. Suavell? Yes. Mr. Suavell votes yes.

Mr. Liu? Aye. Okay, then it went to the witnesses for their opening statements. Who were these four people who were called today and who called them? They were all law professors. Three of them were called by Democrats and one by Republicans. The three Democratic witnesses were Noah Feldman of Harvard Law, Pamela Carlin of Stanford Law, and Michael Gerhart from the University of North Carolina School of Law. And the Republican witness was Jonathan Turley, a professor at George Washington University Law School.

A local. Exactly. Much of the discussion had to do with Section 4 of Article 2 of the Constitution, which gives Congress this power to impeach. It says, the president, vice president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Did the witnesses spell out exactly what this means for President Trump? Yeah, they each gave their own interpretations. And naturally, the witnesses chosen by Democrats were pretty straightforward, saying that in their understanding of the Constitution and the framers intentions, what Trump did absolutely was an

impeachable offense. Noah Feldman of Harvard Law went back to the Constitutional Convention and quoted a discussion in which one delegate, the governor of North Carolina, a man called William Davey, immediately said, if the president cannot be impeached, quote, he will spare no efforts or means whatever to get himself reelected. So in Feldman's interpretation, this is exactly what we're now looking at. Thus expressing the core concern that the president must be subordinate to the law and not above the law. And Pam Carlin also gave a pretty vivid, more modern metaphor. Imagine living in a part of Louisiana or Texas that's prone to devastating hurricanes and flooding.

What would you think if you lived there and your governor asked for a meeting with the president to discuss getting disaster aid that Congress has provided for? What would you think if that president said, I would like you to do us a favor? I'll meet with you and I'll send the disaster relief once you brand my opponent a criminal. And it was painfully obvious that three of these people were sort of on the same page and one of them strongly disagreed, right? Yeah. So the other professor was Jonathan Turley, and he was an interesting choice because the Republicans didn't go for a firebrand conservative who was willing to defend everything Trump did. I'm not a supporter of President Trump. I voted against him. He took more of the tack of saying, well, there may have been some wrongdoing here, but it's moving too fast. Basically, there hasn't been enough evidence presented.

Defenses that have not been fully considered, unsubpoenaed witness with material evidence to impeach a president on this record would expose every future president to the same type of inchoate impeachment. Once the Democrats' counsel started questioning these four law professors, Turley was mostly left out of the party. Once Republicans started questioning, Turley was getting a lot more action. And the conversation seemed to center around whether there was an actual crime committed here. Was there? So this was one of Turley's arguments in defense of Trump, that the standard for what counts as bribery should be high, and that what we're talking about here, in his view, it didn't meet that standard, he was saying. This isn't improvisational

jazz. Close enough is not good enough. If you're going to accuse a president of bribery, you need toites bribery as one possible reason for that. Treason, bribery, or high crimes and misdemeanors. And so we originally, the conversation was about a quid pro quo that Trump was demanding. Then Democrats started shifting more towards arguing that this was bribery or extortion, which are actual criminal offenses and also more similar to what the Constitution says is impeachable, bribery. I think they were probably on a bit firmer ground when they framed it as abuse of power, though, because the Constitution doesn't say you can only impeach a president for bribery. It also says that catch-all category of high crimes and misdemeanors. If we cannot impeach a president who abuses his office for personal advantage, we no longer live in a democracy. We live in a monarchy or we live under a dictatorship.

That's why the framers created the possibility of impeachment. What comes next? Does the Judiciary Committee do this again tomorrow, the next day, next week? There's been talk that Judiciary will hold at least one more hearing, but they don't really seem to be preparing to call in a bunch of witnesses on the facts here. I think what they will do mainly is to move ahead with drafting these articles of impeachment so that they can then be voted on in the committee and sent eventually to the full House of Representatives. So that means we don't have to do a lot more Judiciary Committee hearings where Republicans are calling for votes and roll call every 20 minutes.

I'm sorry you had to sit through this. The clerk will call the roll. Mr. Nadler. Aye. Mr. Nadler votes aye. Mr. Richmond. Yes. Mr. Richmond votes yes. Mr. Jeffries. Aye. Mr. Jeffries votes aye. Mr. Swalwell. Yes. Mr. Swalwell votes yes. Mr. Liu. Aye. Mr. Liu votes aye. Mr. Raskin. Aye. Mr. Raskin votes aye. Ms. Jayapal. Aye. Ms. Jayapal votes aye. Ms. Demings. Aye. Ms. Demings votes aye. Mr. Correa. Aye. Mr. Raskin votes aye. Ms. Jayapal? Aye. Ms. Jayapal votes aye. Ms. Demings? Aye. Ms. Demings votes aye. Mr. Correa? Aye.

Mr. Correa votes aye. Ms. Scanlon? Aye. Ms. Scanlon votes aye. Ms. Garcia? Aye. Ms. Garcia votes aye. Mr. Neguse?

Aye. Mr. Neguse votes aye. Mr. Collins? No. Mr. Collins votes no. Mr. Chabot? No. Mr. Chabot votes no.

Mr. McClintock? No. Mr. McClintock votes no. Ms. Lesko? No. Ms. Lesko votes no. Mr. Reschenthaler? No. Mr. Reschenthaler votes no. Mr. Klein? No. Mr. Klein votes no. Mr. Armstrong? No. Mr. Armstrong votes no. Mr. Stubbe? No. Mr. Stubbe votes no. The motion to table is agreed to. Andrew, let's talk about the Democrats, their timeline, their strategy, the upshot of the entire inquiry and process here.

Let's start with the timeline. So we don't really know what comes immediately next with the Judiciary Committee, but what comes next in the Democrats' process? So there's still no official timetable for moving to an impeachment vote. That said, the Democratic caucus met this morning and the impression that some members got coming out of that hearing, they told NBC News, was that there would be a vote on articles of impeachment before Congress leaves for the holidays on December 20th. Okay, so soon. What's the strategy? I think the strategy is interesting here and is worth a little unpacking because

there is no deadline here. There is no reason necessarily why they couldn't continue investigating. There are clearly gaps remaining in the factual record and witnesses who haven't testified. There's also been some talk that the Judiciary Committee might not only stick to Ukraine for the impeachment articles. They're considering doing one article of impeachment based on the Mueller report as well. But what is very clearly in the minds of a lot of Democrats is that they feel they have to do this quickly. Adam Schiff said, We view this as urgent.

We have another election. Nancy Pelosi said, We cannot be at the mercy of the courts. Representative Val Demings of Florida said, Wouldn't it be a great Christmas gift for it to all wrap up by Christmas? I think what you're hearing in all of that is this shared assumption that it would be bad for Democrats to have this impeachment inquiry unresolved and continuing late into 2020, which, of course, is an election year. Are the Republicans going to let them wrap it up quickly? If they see this strategy pretty transparently, could they stall in order to prolong the process? I don't think that's likely because President Trump also wants this over with.

By all accounts, he does not like being impeached and he wants this to be dispensed with. And the Senate, I think what was spoken of most recently is perhaps a trial of two weeks or so. And all signs currently suggest he will be acquitted rather easily. So really moving ahead with a vote also means moving ahead to the failure of the impeachment effort. And that probably brings us to the third thing I wanted to ask you about, which is the upshot. Clearly, the Democrats are behind this idea. Clearly, the Democrats will impeach Donald Trump. Clearly, the Republicans will acquit. So if we already know this path ahead,

what do Democrats, Republicans, even the president stand to lose and gain here? I think to understand the calculations that are at play here, you got to keep in mind that on one side, there are the political interests of President Trump. And on the other side, there are the political interests of President Trump. And on the other side, there are the political interests of the House Democratic majority. And it is possible that both of those could be best served by a short impeachment inquiry. And the reason for that is the map of the House of Representatives. For Nancy Pelosi to keep her majority,

she needs to reelect a bunch of Democrats in districts that voted for Trump. Trump won roughly 230 or so congressional districts and Clinton won around 205. And remember, Hillary Clinton won the popular vote by two percentage points over Trump. So compared to public opinion generally, the House map, like the Senate, like the Electoral College, is skewed somewhat in Republicans' favor and in Trump's favor. So it's really the political interests of these Democrats in districts that voted for Trump that are driving Nancy Pelosi's calculus. All year, these Democrats generally resisted moving to impeachment because, you know, if Trump is popular in your district, impeachment is basically the biggest high-profile way to say, I think Donald Trump is really bad and he should not be president. And these members generally think that being bipartisan, being moderate is the best path to victory.

And they haven't been feeling particularly comfortable. that some of these vulnerable Democrats have been spooked and watching in horror as pro-Trump groups have bombarded their districts with anti-impeachment ads. This is not a comfortable place for them to be. And it seems that this is the political calculation behind wrapping up impeachment quickly. Are there risks for the Democrats to wrap this up so quickly? Perhaps pushback from the party's more progressive members and others who would like to hear more witnesses called or expand the inquiry beyond Ukraine? When impeachment does fail, as we expect in the Senate, who will say, well, it could have succeeded if it was done differently. Democrats should have spent more time on it. They should have broadened it out from Ukraine, from the Mueller report. Look into other stuff. Look into Trump's corruption with his business.

Look into sexual assault allegations against him, look into policy matters like family separation and all these other potential topics that certain people have wanted to impeach Trump over. I think the counterargument to all this is that Pelosi's calculations regarding public opinion and impeachment have looked pretty good so far. Because if you look at the way the polls have shifted, it is true that as impeachment supporters stress, support for impeachment has increased during the inquiry. But voters' approval of Trump has not changed very much at all during this impeachment inquiry. So basically the people who dislike Trump already have moved to favor impeaching him.

But the people who continue to like Trump haven't changed their minds from any of this. And this crucial polarization and continued support from the Republican base voters is why Republicans are standing behind Trump, is why they're going to vote to acquit Trump, even though the facts may look pretty bad for him. So the only discernible change since this whole thing started is that more people who already disapproved of the president are on board with impeachment. In the grand calculus of things, does that mean this was worthwhile for Democrats? Maybe all Democrats achieved here is a symbolic reprimand of Trump.

And maybe that was worth doing because, you know, what else were they supposed to do once they learned of this really apparently egregious effort to interfere with the 2020 election by smearing Joe Biden? Were they just supposed to let it slide, do nothing, just because the Republican acquittal seemed certain in the Senate?

There is some value in a symbolic reprimand. It is embarrassing for Trump. He did not want to be impeached. He will likely be only the third president in history to meet that fate. But as symbolically effective as it may be, what it will not produce is a real substantive change in who is the president of the United States. That's still going to be Donald Trump when this whole thing wraps up, unless there's some sort of earthquake that there are no signs of so far. Andrew Prokop is a senior correspondent at Vox. I'm Sean Ramos-Furham, and this is obviously...