House Learns What "High Crimes and Misdemeanors" Are, or Maybe It Doesn't

Just one day after a 300-page report summarizing all the evidence that the House Intelligence Committee found relating to the possible impeachment of the President was chucked over the wall to the Judiciary Committee, the Judiciary Committee got to work. The first thing it did was talk to four professors of constitutional law so that the Committee and the American people could understand exactly what the Constitution's words "high crimes and misdemeanors" mean. Three of the professors were (carefully) chosen by the Democrats and one was (carefully) chosen by the Republicans.

Chairman Jerrold Nadler (D-NY), who is painfully aware that Speaker Nancy Pelosi (D-CA) put Rep. Adam Schiff (D-CA) in charge of the impeachment process so far because she has lost faith in the New Yorker, opened the hearing by summarizing the known facts. He said that Donald Trump solicited help from a foreign leader to help damage a political opponent and that Committee was going to consider impeaching him for that. While he was trying to talk, several Republicans kept yelling "point of order" to interrupt him. He gaveled them down to avoid having a circus like the Corey Lewandowski hearing, in which Lewandowski ran roughshod over him.

When Nadler finished, Ranking Member Doug Collins (R-GA) got to make his opening statement. He said there was nothing new to talk about and blamed the Intelligence Committee for not issuing a recommendation to impeach (even though it is not empowered to do so). He talked about the clock and calendar. He attacked the four professors (who hadn't said a word yet) for not reading the Schiff report. He attacked Schiff for not showing up. He attacked the whistleblower for not showing up. He attacked his own committee for not holding hearings (even though that is precisely what they were in the middle of doing). He also attacked them for accepting the Intelligence Committee's report. He called the proceedings a partisan coup d'état, not an impeachment. He said it was a simple railroad job. He noted "We have law professors here. What a party." At no time did he address the facts of the case or say Trump was innocent of impeachable offenses. It was all about process and creating the appearance of impropriety. Basically, he was starting his Senate campaign and praying that many Georgians were watching (see below). He talks really fast for a Southerner, though. Southern accent, yes. Southern drawl? No way.

When Collins finished his tirade, one of the Republican members of the panel made a motion to subpoena Schiff. Nadler wanted no part of that and banged his gavel. One of the Democrats made a motion to table (kill) that motion. On a party-line voice vote, the Democrats passed the motion to table, but the Republicans wanted a recorded vote, just to gum up the works. They asked for recorded votes several times and got them. However, some of the networks broadcasting the hearings cut away to pundits who explained that the Republicans were just trying to throw up a smoke screen and distract people. So, the maneuver may not have worked as desired.

Rep. Andy Biggs (R-AZ) and Collins kept trying to make parliamentary inquiries but Nadler repeatedly ruled they were not about parliamentary procedure. He wasn't going to get pushed around again. Republicans kept trying to make motions but Nadler shut them down every time. Who says you can't teach an old dog new tricks? Eventually, he introduced the professors and let them make their opening statements without tolerating any interruptions.

Harvard Professor Noah Feldman said that "high crimes and misdemeanors" was a term from English law, that it means "abuse of power," and that is exactly what Trump did. He explained why the impeachment provision was included, namely to make sure the president was not above the law. He also said that the July 25th call to Ukrainian President Volodymyr Zelensky clearly qualified as an impeachable offense. He was an effective speaker, not surprising for a Harvard Law professor.

After Feldman spoke, one of the Republicans asked to postpone the hearing. A Democrat made a motion to table. Again, the Republicans demanded a roll call vote. Clearly their goal was to make the process central, not the facts.

Stanford Law Professor Pamela Karlan was next. She rebutted Collins (who said witnesses didn't read the record) by saying she read all the documents and is insulted by his made-up claim she hadn't. She later noted that she spent all of Thanksgiving Day reading the transcripts of all the witnesses who testified before the Intelligence Committee and so was reduced to eating a turkey that came in the mail precooked. She pointed out that the impeachment provision was specifically added to the Constitution to deal with presidents who might try to get foreign countries to help their reelections. She was even more fierce than Feldman.

Prof. Michael Gerhardt of the University of North Carolina came up to bat next. He pointed out that the founders did not want the British system, in which cabinet ministers could be impeached, but "the king can do no wrong." Like the first two, he said that Trump's request for Zelensky's help meets the bar for impeachment. He also said the articles of impeachment drawn up against Richard Nixon also apply to Trump.

Prof. Jonathan Turley of George Washington Law School, the only witness called by the Republicans, started by noting that he didn't vote for Trump in 2016. His said his concern is that if Trump is impeached, it lowers the bar for future impeachments. He also argued that this case resembles the (highly partisan) impeachment of Andrew Johnson, and it is not a good precedent. He pointed out that Republicans, Democrats, his wife, his kids, and his dog are mad. And the dog is a goldendoodle, a breed that doesn't get mad easily. However, just because you are mad at the president and don't like what he did doesn't mean the bar for impeachment has been met. He also made a process argument: not all witnesses have been heard and documents read. Of course, he didn't mention that the reason the investigation is incomplete is that Trump has stonewalled left, right, and sideways. Turley finished with a discussion of Sir Thomas More's views on the Devil, although the Devil is not on trial here. Well, OK, some people believe he is, but like everything else, that is in dispute.

After Turley finished his dance with the Devil by the pale moonlight, another GOP member asked to subpoena the whistleblower. A motion was made to table, and there was another roll call.

Finally, Democratic counsel Norm Eisen asked the first three professors whether Trump had committed an impeachable offense. All agreed that he had. He also asked them whether a president has to commit a statutory felony to be impeached. They all agreed no felony is required. As a good prosecutor, he very much asked questions to which he already knew the answers. Most of the questions were directed at the most powerful speakers (Feldman and Karlan). Although Eisen was never a federal prosecutor, he acted as though he had 30 years of experience as one, leading each of the first three professors to say precisely what he wanted them to say. He was much more prosecutorial than Daniel Goldman, the Intelligence Committee Democratic counsel, who was an actual SDNY prosecutor who sent mobsters to prison. Eisen called on Turley only one time: to verify that he once wrote an op-ed in the Wall Street Journal.

What the Democrats wanted from the constitutional law experts is for them to say that merely asking a foreign national for election help is an impeachable offense, even if there is no quid pro quo and even if the requested help is not forthcoming. The Democrats got what they wanted in spades, repeatedly and forcefully.

When it was the Republicans' turn, Collins started and again harped on process, basically making the point that the witnesses who testified before the Intelligence Committee don't count because, after all, who knows what those guys do? Then he let Turley talk for 5 minutes; Turley came across as serious and knowledgeable. He also said the facts are in dispute, which is technically true, but only because the Republicans are outright denying unambiguous facts. After 25 minutes, Collins turned it over to the Republican counsel, Paul Taylor.

Taylor talked about how partisan the process was, even producing a map showing that most counties voted for Trump and only a small number voted for Hillary Clinton, yet the people running the hearings were all from the small number of counties that voted for Clinton. Aha! Bias because considered by geographic area, most of the country supported Trump. Taylor also cited a recent book on impeachment in which the authors said that impeachments are only legitimate when they are bipartisan. Of course, that means no president can ever be impeached, no matter what he does, if his party sticks with him. The lawyer also spent a lot of time talking about Hunter Biden and about Bill Clinton's impeachment. His whole pitch was to get Turley to say there isn't enough evidence yet, so more time is needed and slow down. Again it was all about process, not content.

When the 5-minute grandstanding round began, the Democrats threw softball questions at Feldman and Karlan, and to a lesser extent, Gerhardt. They hit them out of the park. Republicans threw softball questions at Turley. He hit them out of the park.

Karlan, who describes herself as a "snarky bisexual Jewish woman," got in the snarkiest remark of the day. She was asked about Trump's position that Article II gives him the power to do anything he wants. She said: "The Constitution doesn't allow titles of nobility. The president can name his son Barron, but he can't make him a baron." The audience laughed. In response, Rep. Matt Gaetz (R-FL) tried to take her down by saying she had no business making a joke of the president's minor son. He also asked whether it was true that she gave $2,000 to Hillary Clinton's 2016 campaign. She said she did, and tried to explain, but he cut her off. However, later she said that it is every American's right to support candidates of their choosing, while it most definitely is not the right of foreign nationals to contribute anything of value to a campaign—with the clear implication that a president asking one to do so is a impeachable offense.

Donald Trump was not in town to rail against the whole proceeding, as he was returning from his meetings with the leaders of NATO, but he did plenty of tweeting, of course. The in-person executive branch performance thus fell to Mike Pence, whose real feelings about the President being removed from office may be a tad different from his public stance. In any event, though, the Veep spent the morning thanking Republicans for staying united in support of Trump.

Hearings-wise, Wednesday's were it, for now. Sometime today, very likely, Nadler will announce his Committee's next step. It could be more hearings, or it could be to move on to considering articles of impeachment. (V)

Democrats Hint at Three Articles of Impeachment

At this point, it is virtually certain that Donald Trump will be impeached. The biggest unknown about the impeachment is what the charges will be. The hearings suggest that there might be three articles as follows:

• Abuse of power
• Obstruction of justice
• Bribery

It is also possible that the third one could be replaced by obstruction of Congress, on account of Trump's refusal to let anyone in the administration testify before Congress. Originally, Nancy Pelosi wanted to focus very narrowly on the Ukraine matter, but some members of her caucus want to pull in the Mueller report, which details almost a dozen specific instances that could easily be described as obstruction of justice (e.g., firing FBI director James Comey on account of the Russia thing).

The bribery charge is a bit trickier. That's specifically in the Constitution as an impeachable offense, which is something of a selling point in favor of charging that. However, the Founding Parents were probably thinking about a circumstance in which the president actually accepts a bribe in exchange for carrying out some official action to the benefit of the briber. No one has accused Trump of accepting a bribe. However, his request that Volodymyr Zelensky do him a "favor" could be interpreted as his trying to bribe Zelensky: "If you investigate the Bidens, I'll give you $391 million." In this view, Trump didn't accept a bribe, he offered one. The Constitution is silent on whether offering a bribe is as bad as accepting one. That said, there is also another view. One could very plausibly argue that the bribe that Donald Trump demanded was dirt on and/or an investigation of the Bidens. "You give me what I want, Volodymyr, and then I will give you the meeting and the aid that you want," would be the general idea. Usually, one thinks of money when speaking of a bribe, but under the terms of U.S. election law, at least, information of value is not different from actual lucre.

The advantage for the Democrats in bringing this charge, given that it is explicitly named in the Constitution, is that it will be very diffcult for Trump's lawyers to argue that bribery doesn't reach the level of an impeachable offense. Trump's only defense would be that (1) the first interpretation from the previous paragraph is the correct one, and that (2) A bribe flowing from the president to someone else is not what the Founding Parents were talking about. (V)

Giuliani Is Still at It

One might think that with all the attention that Donald Trump's TV lawyer/fixer Rudy Giuliani has gotten for running a foreign policy show outside the regular channels (under Trump's direction), he would back off. One would be wrong, though. On Tuesday, Giuliani met with former Ukrainian prosecutor Yuriy Lutsenko, one of the key figures in Ukrainegate. Lutsenko has been the source of many false claims about Joe Biden.

Giuliani met with Lutsenko to help prepare more episodes for a documentary series defending Trump. It will be used to help undercut the Democrats' impeachment efforts, and will be aired on the right-wing television network, One America News. Two episodes have already been aired. In one of them, a Ukrainian official claimed that he was instructed to cooperate with a Democratic operative who was trying to collect damaging information about Trump's former campaign manager and current federal prisoner, Paul Manafort. The Ukrainian Embassy has denied that account. (V)

Biden Says He Will Consider Harris as His Running Mate

It took only one day for the love fest to begin. When Sen. Kamala Harris (D-CA) lit into Joe Biden at the first debate for opposing school busing 40 years ago, he was not pleased. Now that she is no longer running for president and attacking him, though, Biden has discovered what a wonderful person she really is and how he has no hard feelings for her. He even went out of his way to say that he would consider her as his running mate. He also hinted that she could become a Supreme Court Justice.

As to the running mate "offer," it is not clear that such a move would be a good idea. Black voters already like the former Veep, so he doesn't have to pander to them. Furthermore, much of her career was built on putting black men in prison, which is not a great selling point with that demographic. Biden's problems are with young voters and progressives, and Harris is not a big star with either group. From a strictly political viewpoint, Stacey Abrams would be a better choice, as she very much excites both groups. (V)

Kemp Defies Trump and Appoints Loeffler to the Senate

Sen. Johnny Isakson (R-GA) is suffering from advanced Parkinson's disease and is retiring from the Senate at the end of the month. Today, all the other senators praised Isakson at his farewell event and said what a nice, bipartisan guy he is. Compared to other Republicans, that is somewhat true, as he is the 30th most conservative senator. Goodbye Johnny, and thanks for your service.

Of course, this imminent departure opened a Senate seat. And yesterday, Gov. Brian Kemp (R-GA) announced that he is appointing multimillionaire Kelly Loeffler to fill it until a special election in Nov. 2020 determines who gets to serve the final 2 years of Isakson's term. Loeffler has said she is "pro-Second Amendment, pro-military, pro-wall, and pro-Trump." What's for a Republican not to like?

A lot, it turns out. In particular, Donald Trump doesn't think her primary guiding principle in life is loyalty to him. He wanted Kemp to appoint Doug Collins, who was busy yesterday as an active House member/Trump cheerleader (see above), and who would love being a U.S. Senator/impeachment trial juror. Kemp defied Trump for two reasons, however. First, he felt that Loeffler, a successful woman, would help stanch the bleeding of suburban women to the Democrats. He is worried that the seat might be in play in November, and even that Georgia's 16 electoral votes might be in play. Second, Loeffler has said she would be willing to spend $20 million of her own money to buy—er, sorry, keep—the Senate seat. That is chump change to her. She is CEO of a bitcoin trading platform, her husband is chairman of the New York Stock Exchange, and between them they are worth north of half a billion dollars.

Some of that money may have to be reserved for a primary, because Trump is not the only one who doesn't want Loeffler in the Senate. Collins doesn't either, because he wants to sit in Isakson's seat. He is considering primarying Loeffler, something neither Trump nor Senate Majority Leader Mitch McConnell (R-KY) want, because a nasty primary with each candidate screaming that he or she loves Trump more than the other is going to waste millions of dollars and energize Democrats. Not all primaries are divisive—the Democratic presidential primary is surprisingly mild, at least so far—but a Loeffler-Collins fight has the potential to do real damage to the eventual primary winner going into the general election. (V)

Graham: Russia Interfered with the 2016 Election, Not Ukraine

Donald Trump keeps repeating the lie that it was Ukraine, not Russia, that interfered with the 2016 election, and that it did so with the aim of helping Hillary Clinton. He does this for two reasons. First, if one accepts the conclusion of the Mueller Report that Russia interfered to help the Donald, it makes him look like an illegitimate president. On the other hand, if Ukraine were the evildoer and helped Clinton, it makes him a hero, as he overcame underhanded foreign help for his opponent. Second, if Ukraine is a Bad Country™, then it makes sense that he would try to withhold military aid from it. That said, historically, the list of Bad Countries™ the U.S. has supported is extremely long.

Complicating Trump's position is this statement from Trump ally Sen. Lindsey Graham (R-SC): "It was the Russians. I'm 1,000% confident that the hack of the DNC was by Russian operatives, no one else." The Senator has repeated that sentiment several times this week. Oops. Of course, no one is perfect, except (according to Trump) Trump himself.

Graham hasn't gone full Democrat, though. He also believes that Joe Biden was somehow nefariously connected to a "raid" on the home of Burisma's founder, Mykola Zlochevsky in 2016. There is, of course, no evidence that Biden was involved. (V)

Horowitz: Russia Probe Was Legitimate

Lindsey Graham is not the only person in Donald Trump's orbit to disappoint the president on Wednesday. Justice Department Inspector General Michael Horowitz is about to release his findings on the origins of the FBI's Russian probe. According to reporting from the Washington Post, Horowitz is going to say that neither he nor Attorney General Bill Barr's handpicked special prosecutor John Durham could find any evidence that the probe was illegitimate.

It's kind of unclear what Barr (and, with him, Trump) was hoping for here. One option is that the AG really and truly believed that there was some deep, dark secret information just waiting to be discovered. This is pretty dubious, though, since it's hard to imagine what that secret information might be, or—if it did exist—how it might suddenly be uncovered after more than two years of the FBI being under the microscope. Alternatively, maybe Barr expected Horowitz and/or Durham to cook the books. The problem is that, in contrast to Barr, there is nothing in their pasts to suggest that either of these men is willing to do that (and risk disbarment and/or imprisonment, by the way). And even if they were willing, it's one thing to write a misleading (but fairly brief) summary of the Mueller report, as Barr did. It's another thing entirely to fake a lengthy report, with charts and graphs and supporting documentation.

In any event, yet another attempt to validate one of the President's many and varied conspiracy theories has failed. (Z)

Trump Calls Trudeau "Two-Faced"

After a video clip of Canadian Prime Minister Justin Trudeau talking about Donald Trump at this week's NATO meeting surfaced, Trump called Trudeau "two-faced." He also said that Trudeau is a "nice guy," but that Canada doesn't pay enough into NATO. This is probably the first time a U.S. president has openly attacked the prime minister of Canada, one of America's closest allies (in more ways than one).

Of course, Trump has made a habit of attacking America's friends and cozying up to its enemies and also somewhat friendly countries with authoritarian leaders, like Turkey. Donald Trump Jr. supported his father by bringing up an old photo of Trudeau in blackface as proof that he is "two faced." The photo is well known in Canada and has caused the P.M. no end of grief there, but is less well known in the U.S. (V)

Heck Won't Run for Reelection

Rep. Denny Heck (D-WA) has decided not to run for reelection next year, creating an open seat in a swing (D+5) district. He served four terms in the House and had a reasonably good chance of winning a fifth term if he wanted it, but it turns out he didn't want it.

Heck's stated reasons for calling it quits are that he misses his wife (who apparently lives in the other Washington), and that his soul is weary from all the impeachment stuff Congress is working on. There are no doubt plenty of Democrats and Republicans who will be interested in his seat, so we could have competitive primaries in both parties. He becomes the 9th Democrat to retire this cycle, as compared to 22 Republicans. (V)

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