The Democrats’ Missed Opportunity on Impeachment

Today’s House Judiciary Committee hearing served to reinforce the partisan divide over President Trump’s conduct rather than challenge it.

Constitutional law experts, from left, Harvard Law School professor Noah Feldman, Stanford Law School professor Pamela Karlan, University of North Carolina Law School professor Michael Gerhardt and George Washington University Law School professor Jonathan Turley, are sworn in to testify during a hearing before the House Judiciary Committee on the constitutional grounds for the impeachment of President Trump. (Jacquelyn Martin / AP)

This hearing was never going to change minds.

Its purpose was not to produce damning new revelations or dramatic testimony. Unlike during the Intelligence Committee hearings last month, the public did not hear new facts from key witnesses, only legal opinions from a group of law professors explaining the history of impeachment as they evaluated the case against President Donald Trump.

Yet as constructed by House Judiciary Committee Chairman Jerry Nadler, a Democrat from New York, the hearing served to reinforce the partisan divide that has swallowed impeachment, rather than challenge it. Exercising their rights in the majority, Democrats chose three witnesses and allowed Republicans to choose one. Nadler opted for three experts on constitutional law—Noah Feldman of Harvard, Michael Gerhardt of the University of North Carolina, and Pamela Karlan of Stanford—who are esteemed in the legal community but whose views on Trump’s conduct are well known.

Gerhardt has worked for Democrats on the Senate Judiciary Committee, while Karlan is a favorite of liberals, who had hoped former President Barack Obama would nominate her to the Supreme Court in 2009. Feldman has been less ideological in his frequent writing as a columnist for Bloomberg News, although he’s previously come out for Trump’s impeachment.

That the Democrats would choose left-leaning witnesses to make the case against the president is not surprising—it’s what typically happens in congressional hearings in the highly polarized House. But as they seek to build a broadly bipartisan consensus and convert Republicans to their cause, they may have missed an opportunity to call one of the many conservative critics of the president’s actions. While there may be a dearth of Republicans within Congress who are willing to call out Trump’s conduct with Ukraine, there are plenty just outside Capitol Hill, especially in the legal community. (The libertarian law professor Jonathan H. Adler suggested a few options on Twitter; others suggested Adler himself.)

Without that diversity, today’s hearing quickly fell into a predictable rhythm. The Democratic witnesses all made their cases compellingly, arguing that the evidence of Trump’s quid pro quo with Ukraine—conditioning foreign aid on an investigation into one of his political rivals, former Vice President Joe Biden—fits precisely the definition of an impeachable offense as conceived by the Framers of the Constitution. “If what we are talking about is not impeachable, then nothing is impeachable,” Gerhardt told the committee.

The GOP’s lone witness was Jonathan Turley, a professor at George Washington University who represented House Republicans when they sued Obama for executive overreach. Turley noted that he didn’t vote for Trump, but he criticized the evidence against him as insufficient and faulted Democrats for rushing the process. “It has not been explained to me why you want to set the record for the fastest impeachment,” he said. “Fast is not good on impeachment.” As for the alleged quid pro quo, Turley said: “There is a difference between requesting investigations and a quid pro quo. You need to stick the landing on the quid pro quo.’

When it came time for questioning, Democrats all but ignored Turley and focused instead on drawing out from their witnesses exactly what they wanted to hear. Republicans did the same.

There were a few pointed exchanges, and some outright anger, such as when Karlan confronted the committee’s top Republican, Representative Doug Collins of Georgia, over his suggestion that the law professors had not been able to fully digest the evidence presented by the Intelligence Committee before their appearance today.

“I would like to say to you, sir, that I read the transcripts of every one of the witnesses that appeared in the live hearing, because I would not speak about these things without reviewing the facts,” Karlan said. “So I’m insulted by the suggestion that as a law professor I don’t care about those facts.”

And there was some levity, such as when Collins complained about the temperature of the hearing room (cold) and his chair (uncomfortable), and when Turley claimed, during his opening statement, that even his golden doodle, Luna, “seemed mad” about the state of American politics.

Yet for most of the first three hours, the hearing itself seemed a microcosm of that political debate and of the impeachment process that, to the chagrin of Trump’s critics, has failed to transcend it. Democrats talked with the Democrats, Republicans talked with the Republican, and the partisan lines that have been drawn on impeachment darkened a little bit more.