House to Draft Articles of Impeachment

profound violation of the public trust. This followed a day of testimony from four constitutional law professors about whether Trump's conduct regarding Ukraine meets the definition of high crimes and misdemeanors required by the Constitution for impeachable offenses. Harvard law professor Noah Feldman and the two other professors called by the Democrats said Trump has committed impeachable offenses, while George Washington University law professor Jonathan Turley said he has not.

Soliciting the leader of a foreign government in order to announce investigations of political rivals and perform those investigations would constitute a high crime and misdemeanor. The problem is not that abusive power can never be an impeachable offense. You just have to prove it and you haven't. Join me is Leo Littman, a professor of constitutional law at the University of Michigan Law School. Leo, what stood out to you in the many hours of testimony? I think a

few things stood out from the testimony. The first is many of them were actually all of them were careful to underscore that something can be impeachable even though it does not violate the criminal statute. Even Professor Turley, who was the expert called by the Republicans, conceded that point and has previously written about that same conclusion. So that's the first important thing that stood out to me, is the unanimity among the experts that something can be impeachable

even though it doesn't violate a federal criminal statue. The second thing that stood out to me was the emphasis that several of the experts placed on how important impeachment can be when the alleged impeachable offense pertains to the integrity of elections, because in that scenario, relying on elections as a solution to presidential misconduct is not going to

address the problem. And I think several of the experts testified about how impeachment is in the Constitution, partially because the people who wrote the Constitution didn't believe that elections would be sufficient in order to address abuses of office. But then some of their specific testimony focused on the importance of elections and the importance of congressional oversight as a mechanism of checking abuses of office as well. So Jonathan Turley basically said, it's a rush to judgment here.

There's not enough evidence. You should take more time. Is that actually advisable considering that some of the most important witnesses, it seems, have not been called by the Democrats because they've been blocked by President Trump. I think that's part of why Professor Turley's suggestion and criticism of the impeachment

process is not particularly persuasive. Versus even setting aside the fact that the president has forbidden certain people from testifying, or at least attempted to forbid them from testifying, the reality is that even without these additional witnesses, there's no

serious dispute about what happened. There's more than enough evidence, particularly given that the president's chief of staff mcildaney and his personal lawyer have all repeatedly conceded that yes, President Trump held up aid because he wanted this announcement into an investigation into Joe Biden's son, or because he wanted Ukraine to make an announcement into the interference to the election.

So the relevant facts aren't really in dispute, and that's part of why this additional time and additional witnesses isn't

really needed. Yes, you could have a more perfect process if you could have more witnesses, but the question is whether that's necessary given what we already know, and when you have the relevant actors conceding that the pertinent events took place, there's just not a ton of point in having additional witnesses testify to that second is exactly what you stated, namely that the Democrats could try to get additional witnesses to testify, but these witnesses are refusing to

do so, pointing to the President and White House directives that they need not as a reason not to testify. And so if the Democrats attempt to get these witnesses to testify, that could take months, years and span well past the election. Given that the alleged conduct again pertains

to the integrity of our elections. I think there is a really serious concern learn about allowing this to continue up until and through elections, and all of those concerns really mitigate against the criticism that Professor Turley made of the Democrats proceedings. So the Judiciary Chairman Jerry Nadler indicated that the panel was moving toward at least three articles

of impeachment, abuse of power, bribery, and obstruction. Does it seem as if there's more difficulty even for the constitutional scholars to explain the bribery. You know, none of the individuals that they called to testify were criminal law experts in particular. However, all of them agree that in as a sense can be impeachable even if it does not violate a criminal statute, and so I think that they're relevant expertise did give them helpful insight into what might

constitute the impeachable offense of bribery. Professor Gerhardt in particular is a scholar of impeachment, and so he has studied about what that word means in the context of the impeachment clause. In particular, Tam Carlin is, you know, probably one of the most, if the not most renowned election law and voting rights scholar of our generation. And so she has a lot of insight into what would count as impermissible interference or a demand for interference into an

election um that would raise concerns about bribery UM. Similarly, Professor Noah Feldman is an expert in constitutional interpretation and constitutional law, and again, given the unanimous agreement among the experts that something can be impeachable even if it does not violate a criminal statute, their expertise in constitutional law, impeachment, election law, and constitutional interpretation I think gave them important insight into what would constitute bribery as far as an

impeachable offense. Leah, How important is the way the articles of impeachment are drafted? Can bead draft doing cause a problem down the road? I think it depends on what anyone is hoping to get out of the articles of impeachment. The unfortunate reality is the Republican Senate and the Republican House seem impervious to persuasion on anything related to impeachment.

So even if the Democrats wrote a perfect set of articles of impeachment, even if those articles referred to conducts that the President has personal representatives have conceded occurred, it's not clear that that would move the needle to cross

the required votes to actually remove the president. That being said, different ways of drafting the articles of impeachment could generate more or less criticism, So of course it's better to produce a better draft that is less susceptible too easy critiques.

But I don't think that the Democrats are going to produce in articles of impeachment that just implodes the case for impeachment, given the testimony that has already been given, and given the state of play right now again in which most of the relevant actors have conceded that the pertinent events occurred. There's been a lot of talk about keeping the investigation and the articles of impeachment narrow focused

on the Ukraine matter. Do you believe that's wise or would it be a good idea to bring in some of the evidence from the Mueller Report. I think that that's a difficult question, and I'm going to punt on it just because I think it's a little above my pay scale. The reality is is that the conduct described in the Mueller Report, I think also more than crossed the threshold for an impeachable offense, particularly the charges of obstruction of justice and interference into the investigation of the

Special Counsel's office. I also think the allegations concerning the welcoming of foreign interference in the election and not doing anything in response to foreign interference in the election are

more than troubling to merit impeachment investigation. As to whether it makes sense for the Democrats to include that on top of the allegations related to Ukraine, I think there is value in doing a very streamlined articles of impeachment that is easily communicated, and so it is narrowly focused on,

you know, this particular set of events and a specific occasion. However, part of why the Ukraine incident is so concerning is there's no reason to think this is the only time that the president has ever used any of the powers of his office inappropriately and abuse them for personal political gain and to inappropriate ends, and so bringing in other incidents in which he has done so strengthens the case

for impeachment and makes it seem more pressing. And it also I think bolsters the allegations because the more and more evidence you have that a person does a particular thing here abusing an office for personal political ends, it can corroborate any of the other particular allegations. So I think there are important considerations on either side of the equation, either in keeping it narrow or in broadening it. And I don't pretend to know what the Democrats should do

in any sense. Yesterday the White House Council was meeting with Senators and there are meetings going on about the parameters of the Senate trial. Should the articles of impeachment be voted by the House. How important are the parameters of the trial, how the trial is set up? Is there a lot of leeway for Mitch McConnell to change things or to truncate they trial? There are some House rules that established some guidelines for how an impeachment proceeding

would work. However, the reality is the Senate controls its own procedures, and the Senate has considerable latitude over how an impeachment trial will proceed. So, yes, Mr McConnell has a lot of power in figuring out how this proceeding is going to be conducted. It's not limitless power. You know, if he decided there would be no witnesses and there would proceed to a vote immediately, that would, I think

seriously raise questions about whether he was abusing his powers. However, there's just not a ton of guidance, in part because there have been so few impeachment proceedings thus far, about how an impeachment trial should actually work. Thanks Leah, that's Lee, a litment of the University of Michigan Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and

on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg