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Impeachment Hearing; Law Expert Karlan: Trump Used Power To Demand A Foreign Government Undermine His Political Opponent. Aired 11a-12p ET

Aired December 4, 2019 - 11:00   ET


[11:00:00] KARLAN: -- a foreign leader and providing assistance that Congress and his own advisors agreed serves our national interest in promoting democracy and in limiting Russian aggression.

Saying Russia, if you're listening -- you know, a president who cared about the Constitution say Russia, if you're listening, butt out of our elections. And it shows a president who did this to strong arm a foreign leader into smearing one of the president's opponents in our ongoing election season. That's not politics as usual, at least not in the United States or not in any mature democracy.

It is, instead, a cardinal reason why the Constitution contains an impeachment power. Put simply, a president should resist foreign interference in our elections. Not demand it and not welcome it. If we are to keep faith with our Constitution and with our republic, President Trump must be held to account. Thank you.

NADLER: Thank you. Professor Gerhardt.

GERHARDT: Thank you, Mr. Chairman, Ranking Member, other distinguished members of the Committee. It's an honor and a privilege to join the other distinguished witnesses to discuss a matter of grave concern to our country and to our Constitution because this House, the people's House has the sole power of impeachment. There is no better forum to discuss the constitutional standard for impeachment and whether that standard has bee met in the case of the current President of the United States.

As I explain in the remainder and balance of my opening statement, the record compiled thus far shows the president has committed several impeachable offenses including bribery, abuse of power, and soliciting of personal favor from a foreign leader to benefit himself personally, obstructing justice, and obstructing Congress.

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, the principle that in this country no one is king. We have followed that principle since before the founding of the Constitution, and it is recognized around the world as a fixed, inspiring American ideal.

In his third message to Congress in 1903, President Theodore Roosevelt delivered one of the finest articulations of this principle. He said, "no one is above the law and no man is below, nor do we ask any man's permission when we require him to obey it. Obedience to the law is demanded as a right, not asked for as a favor."

Three features of our Constitution protect the fundamental principle that no one, not even the president is above the law. First in the British system, the public had no choice over the monarch who ruled them. In our Constitution, the framers allowed elections to serve as a crucial means to ensuring presidential accountability.

Second, in the British system the king could do no wrong and no other parts of the government could check his misconduct. In our Constitution, the framers developed the concept of separation of powers which consist of checks and balances designed to prevent any branch, including the presidency, from becoming tyrannical.

Third, in the British system everyone but the king was impeachable. Our framers' generation pledged their lives and fortunes to rebel against a monarch whom they saw as corrupt, tyrannical, and entitled to do now wrong.

In our Declaration of Independence, the framers set forth a series of impeachable offenses that the king had committed against the America colonists. When the framers later convened in Philadelphia to draft our Constitution, they were united around a simple, indisputable principle that was a major safeguard for the public, we the people against tyranny of any kind. The people who had overthrown a king were not going to turn around just after securing their independence from corrupt, monarchial tyranny and created an office that like the king was above the law and could do no wrong.

The framers created a chief executive to bring energy to the administration of federal laws but to be accountable to Congress for treason, bribery or other high crimes and misdemeanors. The framers' concern about the need to protect against a corrupt president was evident throughout the convention.

And here I must thank my prior two friends who have spoken and referred to a North Carolinian, William Davie. I will refer to another North Carolinian in the Constitutional Convention -- James Iredell. And President Washing later appointed to the Supreme Court assured his fellow delegates, the president quote, is of a very different nature from a monarch. He is to be personally responsible for any abuse of the great trust placed in him, unquote.

This brings us, of course, to the crucial question we're here to talk about today, the standard for impeachment.

[1:05:00] The Constitution defines treason and the term bribery basically means using the office for personal gain, or I should say misusing office for personal gain.

And as Professor Feldman pointed out, these terms derive from the British who understood the class of cases that would be impeachable to refer to political crimes which included great offenses against the United States, attempts to subvert the Constitution when the president deviates from his duty or dares to use the power invested in him by the people breaches the public trust is serious injuries to the republic.

In his influential essay in the "Federalist Papers," Alexander Hamilton declared that impeachable offenses are those offenses which proceed from the misconduct of public men or in other words the abuse or violation of some public trust and relate chiefly to injuries done immediately to the society itself.

Several themes emerge from the framer's discussion of the scope of impeachable offenses and impeachable -- impeachment practice. We know that all impeachable offenses are criminal and we know that not all felonies are impeachable offenses. We know further that what matters in determining whether particular misconduct constitutes a high crime and misdemeanor is ultimately the context and the gravity of the misconduct in question.

After reviewing the evidence that's been made public, I cannot help but conclude that this president has attacked each of the Constitution's safeguards against establishing a monarchy in this country. Both the context and gravity of the president's misconduct are clear. The favor he requested from Ukraine's president was to receive in exchange for his use of presidential power, Ukraine's announcement of a criminal investigation of a political rival.

The investigation was not the important action for the president. The announcement was because it could then be used in this country to manipulate the public into casting aside the president's political rival because of concerns about his corruption. The gravity of the president's misconduct is apparent when we compare it to the misconduct of the one president who resigned from office to avoid impeachment, conviction and removal. The House Judiciary Committee in 1974 approved three articles of impeachment against Richard Nixon who resigned a few days later.

The first article charged him with obstruction of justice. If you read the Mueller report, it identifies a number of facts. I won't lay them out here right now that suggests the president, himself, has obstructed justice.

If you look at the second article of impeachment approved against Richard Nixon, it charged him with abuse of power for ordering the heads of the FBI, IRS, and CIA to harass his political enemies. In the present circumstance, the president has engaged in a pattern of abusing the trust placed in him by the American people by soliciting foreign countries including China, Russia and Ukraine to investigate his political opponents and interfere on his behalf in elections in which he is a candidate.

The third article approved against President Nixon charged he had failed to comply with four legislative subpoenas. In the present circumstance, the president has refused to comply with and directed at least 10 others in his administration not to comply with lawful Congressional subpoenas including Secretary of State Mike Pompeo, Energy Secretary Rick Perry, and Acting Chief of Staff and Head of the Office of Management and Budget, Mick Mulvaney.

As Senator Lindsey Graham, now Chair of the Senate Judiciary Committee said when he was a member of the House on the verge of impeaching President Clinton, the day Richard Nixon failed to answer that subpoena is the day he was subject to impeachment because he took the power from Congress over the impeachment process away from Congress and he became the judge and jury. That is a perfectly good articulation of why obstruction of Congress is impeachable.

The president's defiance of Congress is all the more troubling due to the -- troubling due to the rationale he claims for his obstruction. His arguments and those of his subordinates including his White House counsel in his October 8 letter to the speaker and three committee chairs boils down to the assertion that he is above the law. I won't reread that letter here, but I do want to disagree with the characterization in the letter of these proceedings since the Constitution expressly says and the Supreme Court has unanimously affirmed that the House is the sole power of impeachment that like the Senate, the House has the power to determine the rules for its proceedings.

The president and his subordinates have argued further that the president is entitled to absolute immunity from criminal procedure, even investigation from any criminal wrongdoing including shooting someone on Fifth Avenue.


The president has claimed further, he's entitled to absolute executive privilege not to share any information he doesn't want to share with another branch. He's also claimed the entitlement to be able to order the executive branch as he's done, not to cooperate with this body when it conducts an investigation of the president.

If left unchecked, the president will likely continue his pattern of soliciting foreign interference on behalf of the next election and of course his obstruction of Congress.

The fact that we can easily transpose the articles of impeachment against President Nixon onto the actions of this president speaks volumes and that does not even include the most serious national security concerns and election interference concerns at the heart of this president's misconduct. No misconduct is more antithetical to our democracy and nothing injures the American people more than a president uses his power to weaken their authority under the Constitution as well as the authority of the Constitution itself. May I read one more sentence? I'm sorry.

NADLER: The witness may have another sentence or two.

GERHARDT: Thank you. If Congress fails to impeach here, then the impeachment process has lost all meaning and along with that our Constitution's carefully-crafted safeguards against the establishment of a king on American soil and therefore I stand with the Constitution and I stand with the framers who were committed to ensure that no one is above the law.

NADLER: Thank you Professor. Professor Turley. TURLEY: Thank you Chairman Nadler, Ranking Member Collins, members of the Judiciary Committee, it's an honor to appear before you today to discuss one of the most consequential functions you were given by the framers and that is the impeachment of a President of the United States. Twenty-one years ago, I sat before you, Chairman Nadler, and this committee to testify at the impeachment of President William Jefferson Clinton. I never thought that I would have to appear a second time to address the same question, with regard to another sitting president, yet here we are.

The elements are strikingly similar. The intense ranker and rage of the public debate is the same. The atmosphere that the framers anticipated, the stifling intolerance of opposing views is the same.

I'd like to start, therefore, perhaps incongruously by stating an irrelevant fact. I'm not a supporter of President Trump. I voted against him. My personal views of President Trump are as irrelevant to my impeachment testimony as they should be to your impeachment vote.

President Trump will not be our last president, and what we leave in the wake of this scandal will shape our democracy for generations to come. I'm concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger.

I believe this impeachment not only fails to satisfy the standard of past impeachments, but would create a dangerous precedent for future impeachments. My testimony lays out the history of impeachment from early English cases to colonial cases to the present day. The early impeachments were raw, political exercises, using fluid definitions of criminal and now criminal acts.

When the framers met in Philadelphia, they were quite familiar with impeachment and its abuses, including the Hastings case, which was discussed in the convention, a case that was still pending for trial in England.

Unlike the English impeachments, the American model is more limited, not only in its application to judicial and executive officials, but its grounds. The framers rejected a proposal to add maladministration, because Madison objected and so vague a term would be equivalent to a tenure during the pleasure of the Senate.

In the end, various standards that had been used in the past were rejected, corruption, obtaining office by improper means, betraying the trust of a foreign -- to a foreign power, negligence, perfidy, peculation (ph) and oppression. Perfidy or lying and peculation self- dealing are particularly irrelevant to our current controversy.

My testimony explores the impeachment cases of Nixon, Johnson and Clinton, the closest of these three cases is to the 1868 impeachment of Andrew Johnson. It is not a model or an association that this Committee should relish.

In that case, a group of opponents of the president, called the Radical Republicans, created a trapdoor crime in order to impeach the president. They even defined it as a high misdemeanor. [11:15:00]

There was another shared aspect besides the atmosphere of that impeachment and also the unconventional style of the two presidents. And that shared element is speed. This impeachment would rival the Johnson impeachment as the shortest in history, depending on how one counts the relevant days.

Now, there are three distinctions when you look at these -- or three commonalities when you look at these past cases. All involve established crimes. This would be the first impeachment in history where there would be considerable debate, and in my view, not compelling evidence of the commission of a crime. Second, the abbreviated period of this investigation, which is problematic and puzzling. This is a facially incomplete and inadequate record in order to impeach a president.

Allow me to begin candid in my closing remarks, because we have limited time. We are living in the very period described by Alexander Hamilton, a period of agitated passions. I get it. You're 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.

So, we're all mad. Where has that taken us? Will a slipshod impeachment make us less mad? Will it only invite an invitation for the madness to follow every future administration? That is why this is wrong.

It's not wrong because President Trump is right, his call was anything but perfect. It's not wrong because the House has no legitimate reason to investigate the Ukrainian controversy. It's not wrong because we're in a election year. There is not good time for an impeachment.

No, it's wrong because this is now how you impeach an American president. This case is not a case of the unknowable, it's a case of the peripheral. We have a record of conflicts, defenses that have not been fully considered, unsubpoenaed witness with material evidence. To impeach a president on this record would expose very future president to the same type of inchoate impeachment.

Principle often takes us to a place we would prefer not to be. That was the place seven Republicans found themselves in the Johnson trial, when they saved a president from acquittal that they despised. For generations they even celebrated his profiles of courage. Senator Edmund Ross said it was looking down into his open grave, then he jumped, because he didn't have any alternative.

It's easy to celebrate those people from the distance of time and circumstance, in an age of rage. It's appealing to listen to those saying, forget the definitions of crimes, just do it. Like this is some impulse buy Nike sneaker.

You can certainly do that. You can declare the definitions of crimes alleges are immaterial and just an exercise of politics, not the law. However, those legal definitions and standards, which I've addressed in my testimony, are the very thing that divide rage from reason.

This all brings up to me, and I will conclude with this, of a scene from "Man For All Seasons," by -- with Sir Thomas More, when his son- in-law, William Roper put the law -- suggested that More was putting the law ahead of morality.

He said More would give the devil the benefit of the law. When More asks Roper, would he instead cut a great road through the law to get after the devil, Roper proudly declares, yes, I'd cut down every law of England to do that.

More responds, and when the last law is cut down, and the devil turned around on you, where would you hide, Roper, all the laws being flat? He said, this country is planted thick with laws, from coast to coast, man's laws, not Gods. And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? And he finished by saying, yes, I'd give the devil the benefit of the law for my own sake.


So, I will conclude with this, both sides of this controversy have demonized the other to justify any measure in their defense, much like Roper. Perhaps that's the saddest part of all of this. We have forgotten the common article of faith that combines each of us to each other in our Constitution. However, before we cut down the tree so carefully planted by the framers, I hope you will consider what you will do when the wind blows again, perhaps for a Democratic president. Where will you stand then when all the laws being flat?

Thank you, again, for the honor of testifying today, and I'd be happy to answer any questions.

NADLER: We thank the witnesses.

RESCHENTHALER: Mr. Chairman, I seek recognition.

NADLER: Who seeks recognition?

RESCHENTHALER: Me, Mr. Chairman.

NADLER: For what purpose does the gentleman seek recognition?

RESCHENTHALER: Mr. Chairman, I have a motion pursuant to Rule 11, specifically 2k6 (ph). I move to subpoena the individual commonly referred to as the whistleblower. I ask to do this in objective succession (ph)...

NADLER: Gentleman has stated his motion. Do I hear a motion to table?

(UNKNOWN): I move to table the motion.

NADLER: Motion is table. All in favor say aye. Opposed, no.

COLLINS: Mr. Chairman, roll call...

NADLER: Motion to table is approved. The roll call is requested. The clerk will call the roll.

CLERK: Mr. Nadler?


CLERK: Mr. Nadler votes aye. Ms. Lofgren?


CLERK: Ms. Lofgren votes aye. Ms. Jackson Lee?


CLERK: Ms. Jackson Lee votes aye. Mr. Cohen?


CLERK: Mr. Cohen votes aye. Mr. Johnson of Georgia?


CLERK: Mr. Johnson of Georgia votes aye. Mr. Deutch?


CLERK: Mr. Deutch votes aye. Ms. Bass?

BASS: Aye.

CLERK: Ms. Bass votes aye. Mr. Richmond?


CLERK: Mr. Richmond votes aye. Mr. Jeffries?


CLERK: Mr. Jeffries votes aye. Mr. Cicilline?


CLERK: Mr. Cicilline votes aye. Mr. Swalwell?


CLERK: Mr. Swalwell votes aye. Mr. Lieu?

LIEU: Aye.

CLERK: Mr. Lieu votes aye. Mr. Raskin?


CLERK: Mr. Raskin votes aye. Ms. Jayapal?

JAYAPAL: Aye. CLERK: Ms. Jayapal votes aye. Ms. Demings?


CLERK: Ms. Demings votes aye. Mr. Correa?


CLERK: Mr. Correa votes aye. Ms. Scanlon?


CLERK: Ms. Scanlon votes aye. Ms. Garcia?


CLERK: Ms. Garcia votes aye. Mr. Neguse?


CLERK: Mr. Neguse votes aye. Ms. McBath?


CLERK: Ms. McBath votes aye. Mr. Stanton?


CLERK: Mr. Stanton votes aye. Ms. Dean?

DEAN: Aye.

CLERK: Ms. Dean votes aye. Ms. Mucarsel-Powell?


CLERK: Ms. Mucarsel-Powell votes aye. Ms. Escobar?


CLERK: Ms. Escobar vote aye. Mr. Collins? Mr. Sensenbrenner? Mr. Chabot?


CLERK: Mr. Chabot votes no. Mr. Gohmert?


CLERK: Mr. Gohmert votes no. Mr. Jordan?


CLERK: Mr. Jordan votes no. Mr. Buck?

BUCK: No. CLERK: Mr. Buck votes no. Mr. Ratcliffe? Mr. Ratcliffe votes no. Ms. Roby?

ROBY: Nay.

CLERK: Ms. Roby votes no. Mr. Gaetz? Mr. Gaetz votes no. Mr. Johnson of Louisiana?


CLERK: Mr. Johnson of Louisiana votes no. Mr. Biggs? Mr. Biggs?


CLERK: Mr. Biggs votes no. Mr. McClintock?


CLERK: Mr. McClintock votes no. Ms. Lesko?


CLERK: Ms. Lesko votes no. Mr. Reschenthaler?


CLERK: Mr. Reschenthaler votes no. Mr. Cline?


CLERK: Mr. Cline votes no. Mr. Armstrong?


CLERK: Mr. Armstrong votes no. Mr. Steube?


CLERK: Mr. Steube votes no.

NADLER: Has everyone voted who wishes to vote?

COLLINS: Mr. Chairman, how am I recorded?

CLERK: Mr. Collins, you are not recorded.


CLERK: Mr. Collins votes no.

NADLER: Is there anyone else who wishes to vote?

SENSENBRENNER: Mr. Chairman, how am I recorded?

CLERK: Mr. Sensenbrenner, you are not recorded.


CLERK: Mr. Sensenbrenner votes no.

NADLER: Anyone else? The clerk will report.

CLERK: Mr. Chairman, there are 24 ayes and 17 nos.

NADLER: The witness -- the motion to table is adopted. We will now proceed to the first round of questions. Pursuant to H resolution -- to House Resolution 660 and its accompanying Judiciary Committee procedures, there will be 45 minutes of questions conducted by the Chairman or majority council followed by 45 minutes for the Ranking Member or minority council. Only the Chair and Ranking Member and their respective councils may question witnesses during this period.

Following that, unless I specify additional equal time for extended questioning, we will proceed under the five-minute rule and every member will have the chance to ask questions. I now recognize myself for the first round of questions.

Professors, thank you for being here today. The Committee has been charged with the grave responsibility of considering whether to recommend articles of impeachment against the president I speak for my colleagues when I say that we do not take this lightly. We are committed to ensuring that today's hearing as well as the larger responsibility before us are grounded in the Constitution.

The Intelligence Committee's report concluded that the president pressured a foreign leader to interfere in our elections by initiating and denouncing investigations into President Trump's political adversaries.


He then sought to prevent Congress from investigating his conduct by ordering his administration and everyone in it to defy House subpoenas.

Professor Karlan, as you said the right to vote is the most precious legal right we have in this country, does the president's conduct endanger that right?

KARLAN: Yes, Mr. Chairman. It does.

NADLER: Thank you. And how does it do so?

KARLAN: The way that it does it is exactly what President Washington warned about. By inviting a foreign government to influence our elections, it takes the right away from the American people and it turns that into a right that foreign governments decide to interfere for their own benefit. Foreign governments don't interfere in our elections to benefit us. They intervene to benefit themselves.

NADLER: Thank you. Professor Gerhardt, you have written extensively about or system of checks and balances. What happens to that system when the president undertakes a blockade of Congress's impeachment inquiry when he orders all witnesses not to testify, and what is our recourse?

GERHARDT: When a president does that, separation of powers means nothing. The subpoenas that have been issued, of course, are lawful orders. In our law schools, we would teach our students this is an easy, straightforward situation. You comply with the law. Lawyers all the time have to comply with subpoenas, but in this situation the full-scale obstruction -- full-scale obstruction of those subpoenas I think torpedoes separation of powers, and therefore your only recourse is to in a sense protect your institutional prerogatives, and that would include impeachment.

NADLER: And the same is true of defying congressional subpoenas on a wholesale (ph) basis with respect to oversight, not just the impeachment?

GERHARDT: Absolutely. Yes, sir.

NADLER: Thank you. Professor Feldman, as I understand it the framer intended impeachment to be used infrequently. Not as punishment but to save our democracy from threats so significant that we cannot wait for the next election. In your testimony, you suggest that we face that kind of threat. Can you explain why you think impeachment is the appropriate recourse here, why we cannot wait for the next election? Those are two questions if you wanted it to be (ph).

FELDMAN: The framers reserved impeachment for situations where the president abused his office, that is used it for his personal advantage. And in particular they were specifically worried about a situation where the president used his office to facilitate corruptly his own reelection. That's, in fact, why they thought they needed impeachment and why waiting for the next election wasn't good enough.

On the facts that we have before the House right now, the president solicited assistance from a foreign government in order to assist his own reelection. That is he used the power of his office, that no one else could possibly have used, in order to gain personal advantage for himself, distorting the election. And that's precisely what the framers (ph) anticipated.

NADLER: Thank you very much, I now yield the remainder of my time to Mr. Eisen for counsel questions.

EISEN: Professors, good morning. Thank you for being here. I want to ask you some questions about the following high crimes and misdemeanors that were mentioned in the opening statements; abuse of power and bribery, obstruction of Congress, and obstruction of justice. Professor Feldman, what is abuse of power?

FELDMAN: Abuse of power is when the president uses his office -- takes an action that is part of the presidency, not to serve the public interest but to serve his private benefit and in particular it's an abuse of power if he does to facilitate his re-election or to gain an advantage that is not available to anyone who is not the president.

EISEN: Sir, why is that impeachable conduct? FELDMAN: If the president uses his office for personal gain, the only recourse available under the Constitution is for him to be impeached because the president cannot be as a practical matter charged criminally while he is in office because the Department of Justice works for the president. So the only mechanism available for a president who tries to distort the electoral process for personal gain is to impeach him. That is why we have impeachment.

EISEN: Professor Karlan, do scholars of impeachment generally agree that abuse of power is an impeachable offense.

KARLAN: Yes they do

EISEN: Professor Gerhardt, do you agree that abuse of power is impeachable?

GERHARDT: Yes sir.


EISEN: I'd like to focus the panel on the evidence they considered and the findings in the Intelligence Committee report that the president solicited the interference of a foreign government, Ukraine, in the 2020 U.S. presidential election. 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.

KARLAN: Same answer.

EISEN: And Professor Gerhardt, did President Trump commit the impeachable high crime and misdemeanor of abuse of power.

GERHARDT: WE three are unanimous, yes.

EISEN: Professor Feldman, I'd like to quickly look at the evidence in the report. On July 25th President Trump told the President of Ukraine, and I quote, 'I would like to you to do us a favor though.' And he asked about looking into the Biden's. Was the memorandum of that call relevant to your opinion that the President committed abuse of power?

FELDMAN: The memorandum of that call between the two presidents is absolutely crucial to the determination -- to my determination that the President abused his office.

EISEN: And did you consider the findings of fact that the intelligence committee made including that and again I quote, 'the President withheld official acts of value to Ukraine and conditioned their fulfillment on actions by Ukraine that would benefit his personal political interests'. FELDMAN: Yes, in making the determination that the President committed an impeachable offense, I've relied on the evidence that was before the House in the testimony and then when this report was issued I continued to rely on that.

EISEN: Sir, did you review the following testimony from our ambassador to Ukraine, Ambassador William Taylor.


TAYLOR: To withhold that assistance for no good reason other than help with a political campaign made no sense. It was -- it was counterproductive to all of what we had been trying to do. It was illogical. It could not be explained. It was crazy.

FELDMAN: Yes. That evidence underscored the way that the president's actions undercut national security.

COUNSEL: Professor Feldman, will you please explain why you concluded that the president committed the high crime of abuse of power and why it matters?

FELDMAN: The abuse of power occurs when the president uses his office for personal advantage or gain. That matters fundamentally to the American people because 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.

COUNSEL: Now, Professor Karlan, this high crime and misdemeanor of abuse of power, was it some kind of loose or undefined concept to the founders of our country and the framers of our Constitution?

KARLAN: No, I don't think it was an abuse -- it was a loose concept at all. It had a long lineage in the common law in England, of parliamentary impeachments of lower-level offices. Obviously they had not talked about impeaching, as you've heard earlier, the king or the like.

COUNSEL: And can you share a little bit about that lineage, please?

KARLAN: Yes. So the parliament in England impeached officers of the crown when those people abused their power, and if I could give you one example that might be a little helpful here. Right after the restoration of the kingship in England, there was an impeachment and, you know, when they impeach somebody, they had to say what were they impeaching them for.

So sometimes it would be we're impeaching him for treason or the like, and sometimes they would use the phrase high crime or misdemeanor. And there was an impeachment of Viscount Mordaunt -- which is a great name to have -- but Viscount Mordaunt, and he was impeached because he was the Sheriff of Windsor. And as the parliamentary election was coming up, he arrested William Taylor, and I just want to read to you from the article of impeachment in front of -- in front of the House of Commons because it's so telling. Here's what article 1 of the impeachment said. It said, "understanding that one William Taylor did intend to stand for the election of one of the Burgesses of the Burrow of Windsor to serve in this present parliament," in other words he was running as a member of parliament, this is what Viscount Mordaunt did, "to disparage and prevent the free election of the said William Taylor and strike a terror into those of the said burrow which should give their voices for him and deprive them of the freedom of their voices at the election.


Viscount Mordaunt did command and cause the said William Taylor to be forcibly, illegally, and arbitrarily ceased upon by soldiers and then he detained him."

In other words, he went after a political opponent, and that was a high crime or misdemeanor to use your office to go after a political opponent.

COUNSEL: Now, Professor Gerhardt, does a high crime and misdemeanor require and actual statutory crime?

GERHARDT: No. There -- it plainly does not. Everything we know about the history of impeachment reinforces the conclusion that impeachable offenses do not have to be crimes, and again not all crimes are impeachable offenses. We look at, again, at the context and gravity of the misconduct.

COUNSEL: And Professor Turley, you recently wrote in The Wall Street Journal, and I quote, "there is much that is worthy of investigation in the Ukraine scandal and it is true that impeachment doesn't require a crime."

TURLEY: That's true, but I also added an important caveat. First of all...

COUNSEL: Sir, it was a yes or a no question. Did you write in The Wall Street Journal there is much that is worthy of investigation in the Ukraine scandal and it is true that impeachment does not require a crime. Is that an accurate quote, sir?

TURLEY: That's -- you've read it well.

COUNSEL: So professors Feldman, Karlan, and Gerhardt, you have identified that on the evidence here there is an impeachable act, a high crime and misdemeanor of abuse of power, correct?

GERHARDT: Correct.



COUNSEL: And Professor Feldman, what does the Constitution say is the responsibility of the House of Representatives in dealing with presidential high crimes and misdemeanors like abuse of power? FELDMAN: The Constitution gives the House of Representatives the sole power of impeachment. That means the House has the right and the responsibility to investigate presidential misconduct and, where appropriate, to create and pass articles of impeachment.

COUNSEL: And Professor Karlan, what does that responsibility mean for this Committee with respect to President Trump's abuse of power?

KARLAN: Well because this is an abuse that cuts to the heart of democracy, you need to ask yourselves if you don't impeach a president who has done what this president has done or at least you don't -- you don't investigate and then impeach if you conclude that the House -- that the House Select Committee on Intelligence findings are correct, then what you're saying is it's fine to go ahead and o this again.

And I think that as the -- you know, in the -- in the report that came out last night, the report -- the report talks about the clear and present danger to the election system and it's your responsibility to make sure that all Americans get to vote in a free and fair election next November.

COUNSEL: Professor Karlan, I'd like to direct you to the words in the Constitution "other high crimes and misdemeanors." We're still going to talk about abuse of power. Can I ask did the Constitution spell out every other high crime and misdemeanor?

KARLAN: No, it did not. It...

COUNSEL: Why? Please...

KARLAN: Well, in part because they recognized that the inventiveness of man and the likelihood that this Constitution would endure for generations meant they couldn't list all of the crimes that might be committed. They couldn't imagine an abuse of power, for example, that involved burglarizing and stealing computer files from and adversary because they couldn't have imagined computers. They couldn't necessarily have imagined wire tapping because there -- we had no wires n 1789.

So what they did is they put in a phrase that the English had used and that had adapted over a period of centuries to take into account that the idea of high crimes and misdemeanors is to get at things that people in office use to strike at the very heart of our democracy.

COUNSEL: And Professor, in your written testimony you mentioned two additional aspects of high crimes and misdemeanors besides abuse of power. You talked about betrayal of the national interest -- betrayal of the national interest and corruption of the electoral process. Can you say a little bit more about what the framers' concerns were about corruption of elections and betrayal of the national interest involving foreign powers and how they come into play here?


KARLAN: Sure. So let me start with the framers and what they were concerned with and then bring it up to date because I think there's -- there's some modern stuff as well that's important. So the framers were very worried that elections could be corrupted. They could be corrupted in a variety of different ways and they spent a lot of time trying to design an election system that wouldn't be subject to that kind of corruption. And there are a number of different provisions in the Constitution that deal with the kinds of corruption they were worried about. Two that I'd just like to highlight here because I think they go to this idea about the national interest in foreign governments or one that seems today I think to most of us to be really a kind of remnant of a past time which is if you become an American citizen, almost everything in this country is open to you.

You can become Chief Justice of the United States. You can become Secretary of State but the one office that's not open to you, even though you're a citizen like all of the rest of us is the presidency because of the natural-born citizen clause of the Constitution and the reason they put that in is they were so worried about foreign influence over a president.

The other clause which probably no one had heard of, you know, five years ago but now everybody talks about is the emoluments clause. They were really worried that the president, because he was only going to be in office for a little while, would use it to get everything he could and he would take gifts from foreign countries. Not even necessarily bribes but just gifts and they were worried about that as well. So they were very concerned about those elections but it's not just them and I want to say something about what -- what our national interest is today because our national interest today is different in some important ways than it was in 1789.

What the framers were worried about was that we would be a weak country and we could be exploited by foreign countries. Now we're a strong power now -- the strongest power in the world. We can still be exploited by foreign countries but the other thing that we've done and this is one of the things that I think we, as Americans, should be proudest of is we have become what John Winthrop said in his sermon in 1640 and what Ronald Reagan said in his final address to the country as he left office. We have become the shining city on a hill.

We have become the nation that leads the world in understanding what democracy is and one of the things we understand most profoundly is it's not a real democracy. It's not a mature democracy if the party in power uses the criminal process to go after its enemies and I think you heard testimony -- the Intelligence Committee heard testimony about how it -- it isn't just our national interest in protecting our own elections, it's not just our national interest in making sure that the Ukraine remains strong and on the front lines so they fight the Russians there and we don't have to fight them here but it's also our national interest in promoting democracy worldwide.

And if we look hypocritical about this, if we look like we're asking other countries to interfere in our election, if we look like we're asking other countries to engage in criminal investigations of our -- of our president's political opponents, then we're not doing our job of promoting our national interest in being that shining city on a hill.

EISEN: Professor Feldman, anything to add?

FELDMAN: Ultimately, the reason that the Constitution provided for impeachment was to anticipate a situation like the one that is before you today. The framers were not prophets but they were very smart people with a very sophisticated understanding of human incentives and they understood that a president would be motivated naturally to try to use the tremendous power of office to gain personal advantage to keep himself in office, to corrupt the electoral process and potentially disadvert(ph) the national interest.

The facts strongly suggest that this is what President Trump has done and under those circumstances the framers would expect the House of Representatives to take action in the form of impeachment.

EISEN: Professor Feldman, did you review the intelligence committee report finding that President Trump compromised national security to advance his personal political interests?


EISEN: And will you explain, in your view, how that happened?

FELDMAN: The president sought personal gain and advantage by soliciting the announcement of investigations and presumably investigations from Ukraine and to do so he withheld critical assistance that the government of Ukraine needed and by doing so, he undermined the national security interests of the United States in helping Ukraine, our ally, in a war that it is fighting against Russia. So in the simplest possible terms, the president put his personal gain ahead of the national security interest as expressed according to the evidence before you by the entirety of a unanimous national security community.


EISEN: Sir, is it your view that the framers would conclude that there was a betrayal of the national interest or national security by President Trump on these facts?

FELDMAN: In my view, if the framers were aware that a President of the United States had put his personal gain an interests ahead of the national security of the United States by conditioning aid to a crucial ally that's in the midst of a war on investigations aimed at his own personal gain, they would certainly conclude that that was an abuse of the office of the presidency and they would conclude that that conduct was impeachable under the Constitution.

EISEN: Professor Gerhardt, what are your thoughts on the abuse of power, betrayal of national security or national interests and the corruption of elections, sir?

GERHARDT: Well I have a lot of thoughts. One of them is that what we haven't mentioned yet or brought into this conversation is the fact that the impeachment power requires this committee, this House to be able to investigate presidential misconduct. If a president can block an investigation, undermine it, stop it, then the impeachment power itself, as a check against misconduct, is undermined completely.

EISEN: Professor Karlan, can you have an impeachable offense of abuse of power that is supported by considerations of a president's betrayal of the national interest or national security and by corruption of elections?

KARLAN: Yes you can.

EISEN: And do we have that here, ma'am?

KARLAN: Based on the evidence that I've seen, which is the reviewing the 12 -- the transcripts of the 12 witnesses who testified, looking at the call readout, looking at some of the president's other statements, looking at the statement by Mr. Mulvaney and the like, yes we do.

EISEN: And Professor Feldman, do you agree?


EISEN: Professor Gerhardt?

GERHARDT: Yes, I do.

EISEN: Professor Karlan, we've been talking about the category of other high crimes and misdemeanors like abuse of power. But there are some additional -- there are some additional high crimes and misdemeanors that are specifically identified in the text of the Constitution, correct?

KARLAN: Yes, that's true.

EISEN: What are they?

KARLAN: Treason and bribery.

EISEN: Do President Trump's demands on Ukraine also establish the high crime of bribery?

KARLAN: Yes they do.

EISEN: Can you explain why, please?

KARLAN: Sure. So the high crime or misdemeanor of bribery, I think it's important to distinguish that from whatever the US code calls bribery today. And the reason for this in part is because in 1789, when the Framers were writing the Constitution there was no Federal Criminal Code. The first bribery statutes that the United States Congress passed would not have reached a President at all, because the first one was just about Customs Officials. And the second one was only about Judges. So it wasn't until, I don't know, 60 years or so after the Constitution was ratified that we had any Federal Crime of Bribery at all.

So when they say explicitly in the Constitution that the President can be impeached and removed from Office for bribery they weren't referring to statute. And Federal and I will say I'm not an expert on Federal, Subsidented (ph) Federal Criminal Law. All I will say here is the bribery statute is a very complicated statute. So what they were thinking about was bribery as it was understood in the 18th Century based on the common law up until that point. And that understanding was an understanding that someone and generally even then it was mostly talking about a judge, it wasn't talking about a President because there was no President before that. It wasn't talking about the King, because the King could do no wrong.

But what they were (ph) understanding then was the idea that when you took private benefits or when you asked for private benefits in return for an official act or somebody gave them to you to influence an official act that was bribery.

EISEN: And so we have constitutional bribery here. The high crime and misdemeanor of constitutional bribery against President Trump?


KARLAN: If you conclude that he asked for the investigation of Vice President Biden and his son for political reasons, that is to aid his reelection, then yes, you have bribery here.

EISEN: And in forming that opinion did you review the memorandum of the President's telephone call with the Ukrainian President. The one where President Trump asked I would like you to do us a favor though and also asked about looking into his US Political Opponents?

KARLAN: Yes I did rely on that.

EISEN: And did you consider the following testimony from our Ambassador to the European Union, Ambassador Sondland?

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EISEN: Did you consider that, Professor?

KARLAN: I did consider that, yes.

EISEN: And did you also consider the findings of fact that the Intelligence Committee made including that and I quote from finding a fact number 5 "The President withheld official acts of value to Ukraine and conditioned their fulfillment on actions by Ukraine that would benefit his personal political interest".

KARLAN: I did rely on that in additional because as I've already testified I read the witnesses, the transcripts of all of the witness and I relied on testimony from Ambassador Sondland and testimony from Mr. Morrison, testimony from Lieutenant Colonel Vindman, testimony for Ambassador Taylor. I relied on the fact that when, I think it was Ambassador Taylor but I may be getting which one of these people wrong, sent the -- sent the cable that said it's crazy to hold this up based on domestic political concern. No one wrote back and said that's not why we're doing it. I relied on what Mr. Mulvaney said in his press conference. So there was, you know there's a lot to suggest here that this is about political benefit and if, I don't know if I can talk about another piece of Ambassador Sondland's testimony now or I should wait. Tell me?

EISEN: Please talk about it.

KARLAN: I want to just point to what I consider to be the most striking example of this. And the most, I spent all of Thanksgiving vacation sitting there reading these transcripts. I didn't, I ate like a turkey that came to us in the mail that was already cooked. Because I was spending my time doing this. And the most chilling line for me of the entire process was the following. Ambassador Sondland said he had to announce the investigation, he's talking about President Zelensky, he had to announce the investigations, he didn't actually have to do them as I understood it. And then he said I never heard Mr. Goldman, anyone say that the investigations had to start or had to be completed. The only thing I heard from Mr. Giuliani or otherwise was they had to be announced in some form. And what I took that to mean was this was not about whether Vice President Biden actually committed corruption or not this was about injuring somebody who the President thinks of as a particularly hard opponent.

And that's for his private, his private belies because if I can say one last thing about the interest of the United States the Constitution of the United States does not care whether the next President of the United States is Donald J. Trump or anyone of the Democrats or anybody running on a third party. The Constitution is indifferent to that. What the Constitution cares about is that we have free elections. And so it is only in the President's interest is not the national interest that a particular President be elected or be defeated at the next election. The Constitution is indifferent to that.

EISEN: Professor Feldman, any thoughts on the subject of the high crime and misdemeanor of bribery and the evidence that Professor Karlan laid out?

FELDMAN: The clear sense of bribery at the time when the Framers adopted this language in the Constitution was that bribery existed under the Constitution when the President corruptly asked for or received something of value to him from someone who could effected by his official office. So if the House of Representatives and the member of this Committee were to determine that getting the investigations either announced or undertaken was a thing of value to President Trump. And that that was what he sought. Then this Committee and this House could safely conclude that the President had committed bribery under the Constitution.


EISEN: Professor Gerhardt, what is your view?

GERHARDT: I of course agree with Professor Karlan and Professor Feldman. And I just want to stress that if this, what were, if what we're talking about is not Impeachable than nothing is Impeachable. This is precisely misconduct with (ph) the Framers created a constitution including Impeachment to protect against. And that there's no action if we, if Congress (inaudible) concludes they're going to give a pass to the President here. As Professor Karlan suggested earlier every other President will say okay then I can do the same thing and the boundaries will just evaporate. And those boundaries are set up by the Constitution and we may be witnessing, unfortunately, their erosion. And that is a danger to all of us.

EISEN: And what can this Committee and the House of Representatives do, sir, to defend those boundaries and to protect against that erosion?

GERHARDT: Precisely what you're doing.

EISEN: And, does it matter -- I'll ask all the panelists, does it matter to impeachment that the $391 million, U.S. taxpayer dollars, in military assistance that the president withheld was ultimately delivered.

Professor Feldman, does that matter to the question of impeachment?

FELDMAN: No it does not. If -- if the President of the United States attempts to abuse his office, that is a complete impeachable offense. The possibility that the president might get caught in the process of attempting to abuse his office and then not be able to pull it off, does not undercut in any way the impeachability of the act.

If you'll pardon a comparison, President Nixon was subject to articles of impeachment preferred by this Committee for attempting to cover up the Watergate break-in. The fact that President Nixon was not ultimately successful in covering up the break-in was not grounds for not impeaching him. The attempt itself is the impeachable act.

EISEN: Professor Karlan, does it matter to impeachment that the unfounded investigations the president sought were ultimately never announced?

KARLAN: No, it doesn't. And if I could give an example that I think shows why soliciting is enough. Imagine that you were pulled over for speeding by a police officer and the officer comes up to the window and says, you were speeding, but you know, if you give me 20 bucks, I'll -- I'll drop the ticket. And you look in your wallet and you say to the officer, I don't have the 20 bucks. And the officer says, OK, well just go ahead, have a nice day. The officer would still be guilty of soliciting a bribe there, even though he ultimately let you off without -- without your paying.

Soliciting itself is the impeachable offense, regardless whether the other person comes up with it. So, imagine that the -- imagine that the president had said, will you do us a favor, will you investigate Joe Biden, and the -- the President of Ukraine said, you know what, no I won't, because we've already looked into this and it's totally baseless. The president would still have committed an impeachable act, even if he had been refused right there on the phone.

So, I don't see why the -- the -- the ultimate decision has anything to do with the president's impeachable conduct.

EISEN: What's the danger if Congress does not respond to that attempt? KARLAN: Well, we've already seen a little bit of it, which he gets out on the White House lawn and says, China, I think you should investigate Joe Biden.

EISEN: And Professor Gerhardt, your view?

GERHARDT: I certainly would agree with what's been said. One of the things to understand from the history of impeachment is, everybody who is impeached has failed. They failed to get what the wanted, and what they wanted was not just to do what they did, but to get away with it.

And the point of impeachment is, and it's made possible through investigation, is to -- not -- is to catch that person, charge that person and ultimately remove that person from office. But impeachments are always focusing on somebody who didn't quite get as far as they wanted to. It's as -- nobody's better than Professor Karlan at hypotheticals, but I'll dare to raise yet another one.

Imagine a bank robbery, and the police come and the persons in the middle of the bank robbery, and the person then drops the money and says, I -- I'm going to leave without the money. Everybody understands that's burg -- that's rob -- I mean, that's burglary. I'll get it right, yes. And in this situation, we've got somebody really caught in the middle of it, and that doesn't excuse the person from the consequences.

EISEN: Professors -