As lawmakers in Washington, D.C. grapple with how best to move forward with impeachment proceedings against President Trump, UC Hastings students packed the room to hear a panel of professors share the historical underpinnings and theorize about how the proceedings may play out.
“The framers of the Constitution could not have anticipated this,” Professor Jodi Short said, referring to what she called the “cataclysmic historic moment” of a sitting president facing possible articles of impeachment for soliciting a foreign government to intervene in a national election and temporarily withholding U.S. military aid.
Not that the framers in Philadelphia were acting in the dark. Professor Reuel Schiller noted they relied on 400 years of English Parliamentary precedent. In fact, there was a high-profile parliamentary impeachment going on at the same time as the Constitutional Convention.
“In the English practice of impeachment, kings and ministers could be removed for corruption, maladministration and abuse of power. Equally clear, a minister could be removed even if there were no violations of common law,” Schiller noted.
Differing views on impeachment were among the wedges dividing the Jeffersonians from those in Alexander Hamilton’s camp. In fact, the impeachment trial of Supreme Court Justice Samuel Chase in the early 19th century is perhaps the closest historical reference to where we are now, Schiller said. Chase, a Federalist, “hated Jeffersonians,” and when charging grand jurors, would rail how they were ruining the country. He was impeached in 1804 for the alleged abuse of power, but was acquitted by the Senate in 1805.
Professor Matt Coles explained just how vague the actual rules around impeachment are. “The first question,” he said, is whether it is “legitimate for the House to begin an inquiry without asking for a vote on impeachment.” There is nothing in the Constitution that instructs how the House should go about the process, according to Coles. “This is an example of the kind of constitutional law that almost never winds up in the courts. In this sphere, the law is made by accommodations between the executive branch and Congress, rather than by the judicial branch.”
Coles said the question of whether the president should see the evidence gathered and have the opportunity to cross examine witnesses is at the heart of the current debate over the House’s process.
“President Clinton did not participate in the Whitewater grand jury investigation and President Nixon did not participate in the Senate Watergate Committee hearings. So we do not have a tradition of giving the president those kinds of due process rights during the House investigation before the House holds hearings,” Coles said.
“Right now we are seeing a breathtaking claim of executive privilege,” Coles said. “The president seems to be saying he can completely block anyone in the executive branch from testifying about anything.”
Under the rules adopted by House, if the president refuses to produce requested documents, for example, the chair of the judiciary committee would likely have more license to limit his right to present documents in his defense and cross examine witnesses, Coles said.
Professor Joel Paul took on the role of prosecutor. “Pity the poor future historian who has to sift through all Trump’s tweets and lies and where were we and how did we elect this man.”
Paul laid out exactly how Trump’s request for foreign assistance in investigating Democratic presidential candidate Joe Biden and his son Hunter Biden, who served on the board of Burisma Holdings, a major Ukrainian natural gas producer, was a violation of law.
“This was clearly a violation of campaign finance laws,” Paul said of Trump’s behavior during a July 25 call with Ukraine’s president that was first revealed by an intelligence community whistleblower. And Trump’s withholding of military aid to Ukraine could rightly be interpreted as giving aid to our enemies, as Ukraine is fighting with Russia along Ukraine’s eastern edge. “We have had multiple witnesses come forward to say Trump was demanding a quid pro quo, and the Ukrainians saying they understood there was one,” Paul said.
“That conditionally looks like extortion, which is only the flip side of bribery,” Paul said. “Either way, it is clearly grounds for impeachment.”
Additionally, “the president was sacrificing our national security. We provide aid to Ukraine to control Russian aggression. Failure to provide that had consequences. The Ukrainians were forced to make very serious concessions to Russia” in the form of a plebiscite. “That is a serious assault on Ukrainian sovereignty.”
“When you give aid and comfort to the enemy,” Paul said, “that is called treason.”
If the matter moves to a trial in the Senate, U.S. Supreme Court Chief Justice John Roberts will preside. One student asked if this is not just an impeachment, but perhaps a looming constitutional crisis.
“What would make it a crisis is when Congress and the president are in disagreement, and it falls to the courts to resolve it,” Paul said. “SCOTUS will have a pivotal role if it reaches that point. I think they will again need to solve the problem of people failing to respect subpoenas. But I believe there are enough institutionalists who will assert the judiciary’s power to resolve the crisis.”
Numerous students and faculty who attended the panel stayed afterward and peppered the professors with additional questions. “Students were riveted by their professors’ presentations on impeachment, and they joined the conversation with astute questions about the legal and political dimensions of impeachment,” Short said.
Impeachment proceedings begin Wednesday, Nov. 13, with public testimony.