Are House Democrats making a mistake by moving swiftly to impeach President Donald Trump when some facts remain hidden about whether he abused his power in the Ukraine affair? That was the argument put forward Wednesday by Jonathan Turley, a George Washington University law professor who was the only Republican-selected witness of four legal scholars who testified at the House Judiciary Committee's opening impeachment hearing.
Turley's point crystallised the constitutional dilemma facing Congress as it pushes forward on impeachment rather than pausing to go after additional evidence the White House has withheld. A president willing to dig in and stonewall subpoenas for documents and testimony can use the courts to run out the clock, undermining the House's ability to use its impeachment power in practice.
Calling “the abbreviated period of this investigation” both problematic and puzzling, Turley said Congress had assembled “a facially incomplete and inadequate record in order to impeach a president”. The evidence has gaps because of “unsubpoenaed witnesses with material evidence”, he argued, and it is wrong to move forward without hearing from them.
Democrats have conceded that they would like to obtain more documents and hear more testimony from Trump’s key aides, but they have also argued that the evidence they have is sufficient to impeach him – and said it is absurd for the White House to contend their case has holes when it is thwarting their access to more information.
The chairman of the House judiciary committee, Jerrold Nadler of New York, noted Trump's stonewalling and said that Congress "must act now" because the president had "made clear that if left unchecked", he would again ask a foreign government to intervene in the American election.
“While the Republican witness may not be convinced that there is sufficient evidence that the president engaged in these acts, the American people and the majority of this committee disagree,” Nadler added.
When a president systematically blockades congressional subpoenas and instructs current and former aides not to provide documents and testimony, that is another basis to impeach, argued another witness, Michael J Gerhardt, a University of North Carolina law professor and author of The Federal Impeachment Process: A Constitutional and Historical Analysis.
“In this situation, the full-scale obstruction of those subpoenas, I think, torpedoes separation of powers and, therefore, your only recourse is to, in a sense, protect your institutional prerogatives, and that would include impeachment,” Gerhardt testified.
‘Anything but perfect’
Notably, Turley – who said he had not voted for Trump – did not assert the president did nothing wrong, as hardcore supporters of Trump have done. He said that a now famous call in which Trump pressured Ukraine’s president to announce investigations that could benefit him politically “was anything but perfect”, and that Congress had a legitimate reason to scrutinise it.
But, he argued, it is premature to rush forward with impeachment while Congress has yet to obtain potentially knowable facts about what Trump said to his aides about withholding a White House meeting and $391 million in military aid that Ukraine desperately needed to shore up its defences against Russian aggression.
Much of the evidence the House uncovered in its inquiry was from witnesses who largely were a degree of separation removed from Trump himself. As a result, they were unable to say whether the president ever directly and explicitly said he was conditioning a meeting and the securing funding for the specific purpose of coercing Ukraine’s president into announcing investigations that would benefit him politically.
In his longer written statement, Turley named three men who interacted directly with the president and might know more about what Trump said behind closed doors about Ukraine: Trump's former national security adviser, John Bolton; his personal lawyer, Rudy Giuliani; and his acting chief of staff, Mick Mulvaney.
Bolton is known to have opposed what Giuliani was doing for Trump with Ukraine, met directly with Trump to discuss the frozen aid to Ukraine in August and has coyly indicated that he knows something important that Congress does not yet know.
“There remain core witnesses and documents that have not been sought through the courts,” Turley wrote, adding that the House “is moving forward based on conjecture, assuming what the evidence would show if there existed the time or inclination to establish it”.
White House block
But Turley made only a passing reference in his written statement to the problem that has bedeviled impeachment investigators: The White House has directed top aides to Trump not to co-operate with the House, while asserting that they are immune from being subpoenaed to testify about their discussions with the president.
Bolton, for example, has refused to testify unless and until a judge orders him to, and has made clear he will file a lawsuit to put the matter into court if he receives a subpoena rather than deciding for himself whether Congress’s claimed power to compel his testimony, or the president’s claimed power to block lawmakers from receiving it, should prevail.
The Trump legal team's claim of absolute immunity for top presidential aides has been a losing one in court. A US District Court judge already rejected it in a 2008 case involving a congressional subpoena to Harriet Miers, President George W Bush's former White House counsel. Another trial judge rejected it again late last month, in a case centering on a subpoena to Donald McGahn, Trump's former White House counsel.
But the legal unravelling of Trump’s argument has been a slow process. The opening stage of the fight over the subpoena to McGahn consumed nearly a third of the year before the judge completed a 120-page ruling rejecting it. The justice department then immediately appealed. It can repeat that process before a three-judge panel, and then again before the full appeals court and then before the supreme court.
And even if the supreme court ultimately orders such an official to show up for testimony, he could then refuse to discuss conversations with Trump on the ground that their contents are privileged. That would start a new cycle of litigation.
That means that for the witnesses Turley identified as having potentially material additional information, the justice department would very likely be able to keep the subpoena tied up in court until long after the 2020 election. But Turley said that Trump was “allowed” to go to court and that it would be an abuse of power for Congress to treat that as an impeachable act of obstruction.
He pointed to lower-court rulings against the president in subpoena cases like McGahn’s as “an example of what can happen if you actually subpoena witnesses and go to court” – even though those lower-court rulings took months to achieve and were immediately appealed.
Congress’s question
The question facing Congress, then, is whether the available record, while imperfect, is nevertheless sufficient to fairly deduce that Trump was the architect of a quid pro quo – or whether to wait for the distant prospect of some day obtaining more facts through court.
Republicans on Wednesday ran in part with Turley's theme. Doug Collins of Georgia, the top Republican on the committee, emphasised that the facts of what Trump did are disputed, unlike those during the Nixon and Clinton impeachment proceedings.
“There are no set facts here,” Collins said, adding: “This is not an impeachment. This is simply a railroad job.” – New York Times
