Congress Takes a Law School Class in the Capitol
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Congress Takes a Law School Class in the Capitol

The Judiciary Hearing Probably Changed No Minds, But, Yes, the Democrats Had the Better Questions

Terry H. Schwadron

The opening of the new round of impeachment inquiries before the House Judiciary Committee was less about the answers than about the questions.

If you were a Democrat, you asked questions that prompted the constitutional scholars present to pin the available evidence about Team Trump to a rogue plot to trade Ukrainian recognition and military aid for Donald Trump’s personal political gain.

If you were a Republican, you asked about anything else, from historical precedents about elapsed time, about the meaning of bribery in the 18th Century, about non-existent testimony about Joe and Hunter Biden.

Actually, the four scholars – three chosen by Democrats, one by Republicans – agreed on a lot, including that Trump was involved in a lot of bad behavior. Their disagreement was more about whether right now, right at this instant with the available evidence deducible with the White House obstructing valuable witnesses from testifying, we should have a party-line impeachment.

The fundamental difference among the congress members was whether they were trying to justify impeachment for an audience that already is sure of its leanings, or trying to throw anything available into the cogs of impeachment machinery.

But amid the debates of whether Founding Fathers knew what we know, about the practices and values of the 1770s, about the erudite arguments of Madisonian democracy, the fundamental difference among the congress members was whether they were trying to justify impeachment for an audience that already is sure of its leanings, or trying to throw anything available into the cogs of impeachment machinery.

Not Changing Minds

If you were expecting this to be a dry, academic review, this was more exciting than that. If you wanted “pizzazz,” this was not the hearing for you, but for the colorful outbursts from congress members preening in the limelight for five minutes each. This was not a promotional video for enrollment in constitutional law courses.

These hearings moved the legal case for impeachment forward through the institutional steps. But outside the occasional notes of humor or confrontation (and one stupid reference to Trump’s youngest son), they were not changing minds about the events at hand.

The three scholars chosen by Democrats spoke in lockstep, carefully and intelligently connecting constitutional history and practices to the recent testimony by the ambassadors, diplomats and national security officials that have outlined a fact-based description of a Trump-directed plot. At heart, they argued that if there is no impeachment here for a combination of bribery/extortion and obstruction of justice, there won’t ever be an impeachment, because Trump will indeed be adjudged to be beyond the reach of the law.

The fourth, Jonathan Turley, who opened by saying he did not vote for Trump, was pretty much an attack on constitutional history and theory without actually trying to debate any of the facts come to mind. No one really challenged him on the idea that the reason there is more evidence out there that has not emerged is because the White House has blocked its witnesses. In Turley’s world, unlike that of his three colleagues, it is essential that we have completion of an identifiable crime. He never seemed to deal with the attempt to commit a crime, or conspiracy to do so.

Turley also insisted that Congress would be better off waiting months for courts to decide whether Trump was wrong to stop witnesses from testifying.

That allowed Rep. Doug Collins (R-Ga.), the ranking Republican, to repeat multiple times that this is a fast-tracked impeachment that will not be derailed for lack of facts. His Republican mates were busily making interruptive demands to call Hunter Biden or the whistleblower to testify.

It allowed everyone else, including pundits, to remind audiences that abuse of office and obstruction of justice do not require completion of an underlying felony for impeachment.

They were details, important, but details in a case described in the first week by the inspector general for the intelligence community as “urgent.”

Going Through the Motions

Once again, we weren’t talking about any fact-finding here, we were talking about the talking about fact-finding.

Democrats were going through the motions, with the only question being how many charges to bring.

Republicans were going through their disruptive motions, playing a weak hand for all that it is worth.

Meanwhile, the White House lawyer, Pat Cippolini, was meeting at the Capitol with Senate Republicans to map out how to conduct the impeachment trial that they know see as inevitable.

Rudy Giuliani was reported to be back in the Ukraine, filming a documentary with Ukrainian allies aimed at conservative news outlets to continue the work to throw dirt on Trump’s opponent, Joe Biden, and blame Ukraine for working to meddle in the 2016 election on behalf of Hillary Clinton.

Oh, and Donald Trump was storming out of NATO talks in Britain, angered because other world leaders were videotaped mocking him.

Welcome home, Mr. President.

December 5, 2019