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House Democrats Lay Out Abuse of Power Case Against Trump. Aired 1:30-2p ET

Aired January 23, 2020 - 13:30   ET


[13:30:00] NADLER: -- Johnson by one vote. This was partly because there was a strong argument that the Tenure of Office Act, which President Johnson was charged with violating, was itself unconstitutional, a position the Supreme Court later accepted.

Of course, historians have also noted that a key Senator appears to have changed his vote at the last minute in exchange for promises of special treatment by President Johnson. So perhaps that acquittal meets -- means a little less than meets the eye.

In any event, just over a hundred years later, the House Judiciary Committee accused a second chief executive of abusing his power in a manner egregiously inconsistent with the law. Now the committee charged President Nixon with obstruction of Congress, based on his meritless assertion of executive privilege to cover up key White House tape recordings. We will have more to say about the obstruction charge in a moment.

But the Nixon case also exemplifies the second way a president can abuse his power. President Nixon faced two more articles of impeachment. Both of these articles charged him with abusing the powers of his office with corrupt intent.

One focused on his abuse of power to obstruct law enforcement. The other targeted his abuse of power to target political opponents. Each article enumerated specific abuses by President Nixon, many of which involved the wrongful corrupt exercise of presidential power and many of which were likely not statutory crimes. In explain its second article; the House Judiciary Committee stated that President Nixon's conduct was undertaken for his personal political advantage and not in furtherance of any valid national policy objective. That should sound familiar to everyone here.

It reflects the standard I've already articulated. The exercise of official power to corruptly obtain a personal benefit while ignoring or injuring the national interest. To be sure, all presidents account to some extent for how the decisions in office may affect their political prospects. The Constitution does not forbid that. Elected officials can and should care about how voters will react to their decisions. They will often care about whether their decisions make it more likely that they will be reelected but there is a difference, a difference that matters between political calculus and outright corruption. Some uses of presidential power are so outrageous, so obviously improper that if they are under taken for a president's own personal gain with injury or indifference to core national interests then they are obviously high crimes and misdemeanors.

Otherwise, even the most egregious wrongdoing can be - could be justified as disagreement over policy or politics and corruption that would have shocked the framers that they expressly sought to prohibit would overcome the protections they established for our benefit and there should be nothing surprising about impeaching a president for using his power with corrupt motives.

The House and Senate have confirmed to this point in prior impeachments. More important the Constitution itself says that we can do so. To start, the Constitution requires that the president faithfully execute the law. A president who acts with corrupt motives, putting himself above country has acted faithlessly not faithfully executed the laws.

Moreover, the two impeachable offenses that the Constitution enumerates, treason and bribery, each require proof of the president's mental state. For treason, he must have acted with a disloyal mind according to the Supreme Court and it is well established that the elements of bribery include corrupt motives. In sum, to the framers it was dangerous for officials to exceed their Constitutional power but it was equally dangerous, perhaps more so, for officials to use their power with corrupt, nefarious motives thus perverting public trust for public - for private gain.

Abuse of power is clearly an impeachable offense under the Constitution. To be honest, this should not be a controversial statement. I find it amazing that the president rejects it, yet he does. He insists that there is no such thing as impeachable abuse of power. His position is dead wrong. All prior impeachments considered of high office have always included abuse of power.

All of the experts who testified before the House Judiciary Committee including those called by the Republicans agree that abuse of power is a high crime and misdemeanor. Here is testimony from Professor Pam Karlan of Stanford Law School joined by Professor Gerhardt.



EISEN: 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.


NADLER: Professor Turley who testified at Republican invitation echoed that view. In fact, he not only agreed, but he quote stressed that it is possible to establish a case for impeachment based on a non criminal allegation of abuse of power. Professor Turley is hardly the only legal expert to take that view. Another who comes to mind in Professor Alan Dershowitz. At least Alan Dershowitz in 1998, back then here is what he had -- what he had to say about impeachment for abuse of power.


DERSHOWITZ: It certainly doesn't have to be a crime, if you have somebody who completely corrupts the office of president, and who abuses trust and who poses great danger to our liberty, you don't need a technical crime.


NADLER: But we need not look to 1998 to find one of President Trump's key allies espousing this view. Consider the comments of our current Attorney General William Barr, a man known for his extraordinarily expansive view of executive power. An Attorney General's -- and Attorney General Barr's view as expressed about 18 months ago, Presidents can not be indicted or criminally investigated. But that's OK. Because they can -- can be impeached, that's the safeguard. And in an impeachment, Attorney General Barr added, the President is answerable for any abuses of discretion and may be held accountable under law for his misdeeds in office.

In other words, Attorney General Barr who believes along with the Office of Legal Counsel that a president may not be indicted, believes that that's OK, we don't need that safeguard against a president who would commit abuses of power, it's OK because he can be impeached. That's the safeguard, for abuses of discretion and for his misdeeds in office. More recently, a group of the nations leading constitutional scholars ranging across the ideological spectrum from Harvard Law professor Larry Tribe to former Ronald Regan's Solicitor General Charles Fried, issued a statement affirming that, quote, "abuse of power counts as an instance of impeachable high crimes and misdemeanors under the constitution." They added, that was clearly the view of the Constitutions framers.

I could go on but you get the point. Everyone except President Trump and his lawyers agree that President -- that presidents can be impeached for abuse of power. The President's position amount to nothing but self serving constitutional nonsense, and it is dangerous nonsense at that. A president who sees no limit on his power manifestly threatens the republic. The Constitution always matches power with constraint. That is true even of powers vest in the chief executive.

Nobody is entitled to wield power under the Constitution if they ignore the -- or betray the nation's interests to advance their own. President Nixon was wrong in asserting that "when the President does it, that means it is not illegal" and President Trump was equally wrong when he declared that he had the power -- the right to do whatever I want as president. Under the Constitution, he is subject to impeachment and removal for abuse of power. And as we will prove, that is exactly what must happen here.

Of course, President Trump's abuse of power as charged in the first article of impeachment, and supported by a mountain of evidence, is aggravated by another concern at the heart of the Constitution's impeachment clause, betrayal.

The founders of our country were not fearful men. When they wrote our Constitution, they had only recently won a bloody war for independence. But as they looked outward from their new nation, they saw kings scheming for power, promising fabulous wealth to spies and deserters.

The United States could be enmeshed in such conspiracies. Former Foreign Powers Ward Elbridge Gerry will intermodal in our affairs and spare no expense to influence them. The young republic not survive a president who schemed with other nations, entangling himself in secret deals that harmed our democracy.


That reality loomed over the impeachment debate in Philadelphia. Explaining why the Constitution required an impeachment option, Madison argued that a the president might betray his trust to foreign powers. To be sure, the Framers did not intend impeachment for genuine good faith disagreements between the president and Congress over matters of diplomacy.

But they were explicit that betrayal of the nation through plots with foreign powers must result in removal from office. And no such betrayal scared them more than foreign interference in our democracy.

In his farewell address, George Washington warned Americans, quote, "To be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of Republican government," close quote.

And in a letter to Thomas Jefferson, John Adams wrote, you are apprehensive of foreign interference, foreign intrigue influence. So am I. But as often as elections happen, the danger of foreign influence recurs.

The Framers never suggested that the president's role in foreign affairs should prevent Congress from impeaching him for treachery in his dealings. Case in point, they wrote a Constitution that gives Congress extensive responsibility over foreign affairs, Congress, including the power to declare war, regulate foreign commerce, establish uniform rule of naturalization and define offenses against the law of nations.

Contrary to the claims you heard the other day, that the president has plenary authority in foreign affairs and there is nothing Congress can do about it. The Supreme Court has stated that Constitutional authority over the conduct of the foreign relations of our government is shared between the executive and legislative branches.

Well, to quote another Supreme Court case, the executive is not free from the ordinary controls in checks of Congress merely because foreign affairs are at issue. In these realms, just as Jackson wrote, the Constitution enjoys upon it's branches separateness, but interdependence, autonomy but reciprocity.

When the president betrays our national security and foreign policy interests for his own personal gain, he is unquestionably subject to impeachment and removal. The same is true of a different concern raised by the Framers. The use of presidential power to corrupt the elections and the office of the presidency.

The Framers were no strangers to corruption. They understood that corruption had broken Rome, debased Brittan and threatened America. They saw no shortage of threats to the Republic and fought valiantly to guard against them. But as one scholar writes, the big fear underlying all the small fears was whether they'd be able to control corruption.

So the Framers attempted to build a government in which officials would not use public power for personal benefits, disregarding the public good in pursuit of their own advancement.

This principal applied with special force to the presidency. As men -- as Madison emphasized, because the presidency was to be administered by a single man, his corruption might be fatal to the republic. Indeed, no fewer than four delegates of the Constitutional Convention; Madison plus Morris, Mason and Randolph listed corruption as a central reason why presidents must be subject to impeachment and removal from office.

Impeachment was seen as especially necessary for presidential conduct corrupting our system of political self government. The framers foresaw and feared that a president might someday place his personal interest in re-election above our abiding commitment to democracy.

Such a president in their view would need to be removed from office. Professor Feldman made this point in his testimony before the House Judiciary Committee.


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 re-election.

That's in fact why they thought they needed impeachment and why waiting for the next election wasn't good enough.


NADLER: Professor Feldman's testimony is grounded in the records of the Constitutional Convention. There, William Davey warned that a president who abuses office might spare no efforts or means, whatever, to get himself re-elected and thus to escape justice.


George Mason built on Davey's position asking shall the man who has practiced corruption and by that means procured his appointment in the first instance be suffered to escape punishment by repeating his guilt.

Mason's concern was straight forward. He feared that presidents would win election by improperly influencing members of the Electoral College. Governor Morris later echoed -- later echoed this point, urging that the Executive or therefore to be impeachable for corrupting his electors.

Taken together, these debates demonstrate an essential point. The framers knew that a president who abused power to manipulate elections presented the greatest possible threat to the Constitution.

After all, the beating heart of the framers project was a commitment to populous sovereignty at a time when Democratic self government existed almost no where on earth, the framers imagined a society where power -- where power flowed from and returned to the people.

That is why the president and members of Congress must stand before the public for re-election on fixed terms. And if a president abuses his power to corrupt those elections, he threatens the entire system, as Professor Karlan explained in her testimony.


KARLAN: Drawing a foreign government into our elections is an especially serious abuse of power because it undermines democracy itself. Our Constitution begins with the words "We the People" for a reason. Our government, in James Madison's words, derives all its powers directly or indirectly from the great body of the people.

And the way it derives these powers is through elections. Elections matter, both to the legitimacy of our government and to all of our individual freedoms because as the Supreme Court declared more than a century ago, voting is preservative of all rights.


NADLER: Professor Karlan is right. Elections matter. They make our government legitimate and they protect our freedom. A president who abuses his power in order to knee cap political opponents and spread Russian conspiracy theories, a president who uses his office to ask or even worse to compel foreign nations to meddle in our elections is a president who attacks the very foundation of our liberty.

That is a grave abuse of power. It is an unprecedented betrayal of the national interest. It is a shocking corruption of the election process and it is without doubt a crime against the Constitution warranting, demanding removal from office. The framers expected that free elections would use -- would be the usual means of protecting our freedoms. But they knew that a president who sought foreign assistance in his campaign must be removed from office before he could steal the next election.

In a last ditch legal defense of their client, the president's lawyers argue that impeachment and removal are subject to statutory crimes or to offenses against established law that a president cannot be impeached because he has not committed a crime.

This view is completely wrong. It has no support in Constitutional text and structure, original meeting, Congressional precedence, common sense, or the consensus of credible experts.

In other words it conflicts with every relevant consideration. Professor Gerhardt succinctly captured the consensus view in his testimony.


(UNKNOWN): Professor Gerhardt, does a high crime and misdemeanor require an actual statutory crime.

GERHARDT: No. There -- it -- it plain 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.


NADLER: This position was echoed by the Republican's expert witness, Professor Turley in his written testimony. There he stated that it, quote, it is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power.

He also stated, it is clear that high crimes and misdemeanors can encompass non criminal conduct. More recently, Professor Turley, again the Republican witness at our hearing, wrote an opinion piece in the Washington Post entitled where the Trump defense goes too far.


In this piece, he stated that the president's argument is as politically unwise as it is constitutionally short sighted. He added, if successful it would also come at a considerable cost for the constitution.

Although I disagree with Professor Turley on many, many issues; here he is clearly right. And I might say the same thing of then House manager Lindsey Graham when President Clinton's trial flatly rejected the notion that impeachable offenses are limited to violations of established law. Here is what he said.

(BEGIN VIDEO CLIP) GRAHAM: What's a high crime? How about if an important person hurts somebody of low means. It's not very scholarly but I think it's the truth. I think that's what they meant by high crimes. Doesn't have to be a crime. It's just when you start using your office and you're acting in a way that hurts people, you've committed a high crime.


NADLER: There are many reasons why high crimes and misdemeanors are not and cannot be limited to violations of the criminal code. We address them at lengths in the briefs we have filed and the report of the House Judiciary Committee respecting these articles of impeachment. But I would like to highlight a few especially important considerations. I'll talk -- I'll tick through them quickly.

First, there is the matter of the historical record. The framers could not have meant -- could not have meant to limit impeachment to statutory crimes. Presidents are to be impeached and removed from office for treason, bribery and other high crimes and misdemeanors, but bribery was not made a statutory crime until 1837.

Second, the president's position is contradicted by the Constitution's text. The framers repeatedly referred to crimes, offenses and punishment -- crimes offenses and punishment elsewhere in the Constitution, but here, they refer to high crimes. That matters. It matters because the phrase "high crimes" refers to offenses against the state, rather than to workaday crimes, and it matters because the phrase "high crimes and misdemeanors" had a rich history in England, where -- where it had been applied in many, many cases that did not involve crimes under British law. When the framers added high crimes here -- here, but nowhere else in the Constitution, they made a deliberate choice.

Any doubt on that score is dispelled by the framers' own statements. In Federalist No. 65, Alexander Hamilton explained that impeachable offenses are defined fundamentally by the abuse or violation of some public trust. A few years later, James Wilson, a Constitutional Convention delegate, agreed with Hamilton. Wilson stated, "Impeachments and offenses and offenders impeachable come not within the sphere of ordinary jurisprudence. They are founded on different principles, are governed by different maxims and are directed to different objects."

George Mason expressed concern that the president might abuse the pardon power to, quote, "screen from punishment those who -- whom he had secretly instigated to commit a crime, and thereby, prevent a discovery of his own guilt." Sound familiar?

James Madison responded directly to Mason's concern, because Mason's concern was that the pardon power might be too broad; that the president might misuse his broad pardon power to -- to -- to pardon his own co-conspirators and prevent the discovery of his own guilt. Madison responded, "If the president be connected in any suspicious manner with any person and there be grounds to believe he will shelter him, the House of Representatives can impeach him. They can remove him, if found guilty." At the North Carolina Ratifying Convention, James Iredell, who would go on to serve on the Supreme Court, responded to the same concern. He assured delegates that if the president abused his power with, quote, "some corrupt motive or other," he would be liable to impeachment.

In the early 1800s this understanding was echoed by Supreme Court Justice Story, who wrote his famous treatise on the Constitution. There, he rejected the equation of crimes and impeachable offenses, which he stated "must be examined upon very broad and comprehensive principles of public policy and duty."


Later in American history, Chief Justice and former President William Howard Taft, as well as Chief Justice Charles Evans Hughes publicly stated that impeachable offenses are not limited to crimes, but instead, capture a broader range of misconduct. Indeed, under -- under Chief Justice Taft, the Supreme Court unanimously observed that abuse of the president's pardon power to frustrate the enforcement of court orders would suggest resort to impeachment. And this is square -- now, notice, pardon power is unlimited. What they're saying here is abuse of the pardon power, use of the pardon power for corrupt motive was impeachable.

And if all that authority is not enough to convince you, there is more.

Historians have shown that American colonists before the Revolution and American states after the Revolution, but before 1787 all impeached officials for noncriminal conduct. Over the past two centuries, moreover, a strong majority of the impeachments voted by the House have included one or more allegations that did not charge a violation of criminal law.

Indeed, the Senate has convicted and removed multiple judges on noncriminal grounds. Judge Archbald was removed in 1912 for noncriminal speculation in coal properties. Judge Ritter was removed in 1936 for the noncriminal offense of bringing his court into scandal and disrepute. During Judge Ritter's case, one of my predecessors as chairman of the House Judiciary Committee stated expressly, "We do not assume the responsibility of proving that the respondent is guilty of a crime, as that term is known to criminal jurisprudence." What is true for judges is also true for presidents, at least on this point.

The House Judiciary Committee approved three articles of impeachment against President Nixon. Each of them encompassed many acts that did not violate federal law. One of the articles, obstruction of Congress, involved no allegations of any legal violation and it is worth reflecting on why President Nixon was forced to resign. Most Americans are familiar with the story. The House Judiciary Committee approved articles of impeachment in July, 1974. Those articles passed with a bipartisan support, although most Republicans stood by President Nixon.

Then the smoking tape came out. Within a week, almost everyone who supported the president a week before changed his position, and the president was forced to resign because of what was revealed on the smoking gun tape. Within a week, Senator Goldwater and others from the Senate went to the president and said, "You won't have a single vote in the Senate. You must resign or you will be removed from office," because of the evidence on the smoking gun tape.

But what was on the smoking gun tape? The smoking gun tape were recordings of President Nixon instructing White House officials to pressure the CIA and the FBI to end the Watergate investigation. No law explicitly prohibited that conversation. It was not in that sense a crime, but President Nixon had abused his power. He had tried to use two government agencies, the FBI and the CIA, for his personal benefit. His impeachment and removal was certain, and he announced his resignation within days.

Decades later, in President Clinton's case, the Judiciary Committee, reporting on the articles of impeachment, stated, "The actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment."

There is, thus, overwhelming authority against restricting impeachments to violations of established or statutory law. Every relevant principle of constitutional law compels that result. So does common sense. Impeachment is not a punishment for crimes. Impeachment exists to address threats to the political system, applies only to political officials and responds not by imprisonment or fines, but only by stripping political power. It would make no sense to say that a president who engages in horrific abuses must be allowed to remain in Congress -- in office unless Congress had anticipated his or her specific conduct in advance and written a statute expressly outlawing it. For one thing that would be practically impossible. As Justice Story observed, the threats posed by presidential abuse are of so various and complex a character that it would be almost absurd to attempt a comprehensive list.

The Constitution is not a suicide pact, it does not leave us stuck with presidents who abuse their power in unforeseen ways that threaten our security and democracy. Until recently it did not occur to me that our president would call a foreign leader and demand a sham investigation meant to kneecap his political opponents, all in exchange for releasing vital military aid -