I don’t know if you watched last Wednesday’s House Judiciary Committee as it began its portion of the impeachment inquiry into President Donald Trump’s behavior and alleged abuse of power. From polling I’ve seen, most people have already made up their minds. That’s a shame because the debate is in many ways a continuation of the debates in 1787 by the likes of Madison, Hamilton, Pinckney, Mason and Franklin.
So when four distinguished constitutional scholars testified to the committee Wednesday, there was more to learn than whether Donald Trump engaged in bribery and obstruction of justice. Three were Noah Feldman, Harvard Law School; Pamela S. Karlan, Stanford Law School; and Michael Gerhardt, University of North Carolina, all chosen by Democrats and, perhaps unsurprisingly, all favor impeaching Trump.
Most of the “discussion” centered on the infamous July 25, 2019 phone call from Trump to new Ukrainian President Volodymyr Zelenskiy during which Trump is alleged by critics to have enlisted Zelenskiy in an investigation of Joe Biden and his son Hunter prior to the 2020 election.
Much of the day, Democrats’ quizzed Feldman, Karlan and Gerhardt, asking questions designed to elicit pro-impeachment answers. They needn’t have tried too hard — all three favor impeachment based on the events in the Ukrainian affair. They managed to elicit from all three that those acts represented bribery, one of the offenses spelled out in the constitution for impeachment.
Feldman, the Harvard law professor, said placing conditions on the aid personally benefitting Trump (rather than the country) “clearly constitutes impeachable high crimes and misdemeanors under the Constitution.
Karlan, from Stanford, said Trump’s transgressions exceed those of past presidents.
“What has happened in this case today is something that I do not think we have ever seen before — a president who has doubled down on violating his oath.”
“If what we are talking about is not impeachable, then nothing is impeachable,” Gerhardt told the committee.
Turley, of George Washington University, was called by Republicans. He had served as a staff lawyer for Republicans 20 years ago during the impeachment of Democratic President Bill Clinton. Unsurprisingly, he took a different view, but perhaps not as different as Republicans wanted.
Turley said Democrats are rushing the process without securing more definitive evidence through subpoena demands on the Trump administration through the courts. At one point, Turley said his position at the time of his testimony was neither for or against impeachment, but Democrats should produce more hard evidence.
The same split developed over the question of whether Trump has obstructed justice. Again, Turley argued the House should move more slowly, collecting more evidence.
Democrats throughout the day directed their questions almost exclusively to the three witnesses they’d called, usually ignoring Turley. Republicans largely did the same in reverse, although, they spent time haranguing the three professors who favor impeachment or complaining about the process.
The hearing was far from dull, especially for those fascinated by the era of the Founders. To enforce their points, the law professors and an occasional lawmaker quoted from The Federalists’ Papers and notes taken at the 1787 convention, even Dr. Samuel Johnson’s 1792 dictionary.
Feldman earned my admiration for invoking the name of one of the lesser known but more important Constitutional delegates: Gouverneir (pronounced – I think – Gooo-vuh-neer) Morris. Born into comfort in New York, he lived most of his life in Pennsylvania. As a child, a cauldron of boiling water was spilled on one arm, permanently disfiguring it. Then as a young man, he was thrown from a carriage and his leg was amputated at the knee. None of this apparently slowed him down, although, he didn’t marry until advanced middle age, yet he had a reputation with women.
Morris played much the same role at the Constitutional Convention as Jefferson did with the Declaration. Like Jefferson, Morris was appointed to a committee of three to put onto paper what the delegates had wrangled out as an acceptable Constitution. Morris distilled information from something like 40 pages and is responsible for the entire preamble which begins “We the people …”
We the people should never lose memory of men like Morris and the others and we should watch closely when today’s representatives approach a constitutional crisis. Learn about the Constitution from reputable historians’ books rather than Fox or MSNBC. And let your lawmaker know how you feel.
As Franklin is reputed to have said to a woman outside Constitution Hall when asked: “Well, what have you given us?”
“A republic if you can keep it madam.”
His admonishment rings just as true today.
Ronnie Ellis is the former statehouse reporter for CNHI Kentucky and now writes a weekly column. Follow him on Twitter @cnhifrankfort.