Sunday School 11/24/19

I'm checking in with the panel on ABC's This Week with George Stephanopoulos today, since I haven't spent a lot of time with them over the the past few weeks. We'll check in with some of the other classrooms in our Extra Credit post.

On the panel today were NYY constitutional law professor Melissa Murray; Dan Abrams, the network's chief legal analyst; former Rep. Barbara Comstock (R-VA) who was chief counsel during the Clinton impeachment for the House Government Reform Committee; and Kate Shaw, former legal counsel in the Obama administration and now a constitutional law professor at Yeshiva University's Cardozo Law School.

George wondered if the Dems had made their case that president Trump had committed any impeachable offenses. Abrams said it depends on what their case is.

Did they show that there was a quid pro quo, that aid was being withheld in exchange for an investigation? Yes. they have got those facts on the table, I think it's very hard to dispute that. But that's only the first question. Question two is, was it wrong? I think that they did a pretty good job of demonstrating that it was wrong. 

But question three is the most important one... The question is, is this enough to remove him from office? And that's still yet to be seen.  

Comstock mused that on obstruction they had a lot of witnesses but not a lot of documents. And bribery, which is "an intent crime, that's going to be more difficult." And bringing in other issues, even from the Mueller report? That will contribute to the thinking that the Dems have "just been trying to impeach the president for anything." And, she said

I think it's very much like the Clinton impeachment where a lot of people are going to say this was wrong, as (Texas Rep.) Will Hurd said, 'it was in appropriate, the conversation, but I don't think it's impeachable.' I think that's where some -- you know, most of the Republicans are saying, 'no, it's not wrong. Nothing wrong with the call.'  The president is kind of driving that line, but I do think you're going to see other Republicans take the line that Will Hurd did, sort of the Clinton line of 'it's wrong but let's not impeach over it.' 

George wondered if the argument that even if this is going nowhere in the Senate, the Dems still have to go forward to deter future presidents from acting in a similar way. Murray agreed that was a strong argument - and she also agreed with Comstock about this being a political proceeding, too.

And the way this has played out has really been like a Rorschach test of whether you are a Democrat or a Republicans or whether you are convincible and in that soft middle. 

In response to George's comment about positions of House members having hardened, not softened, Shaw agreed with him, and she agreed that perhaps a Republican defense could be that censure might be warranted, but impeachment may not be. However, she noted

But you have basically seen the opposite, right? The president is insisting he did nothing wrong and his party is sort of coalescing around it, as you said, a little bit inconsistent with sort of public opinion. Most people think this was wrong, but of course 'wrong' is not the constitutional standard. 

Abrams talked about what happens when this gets to the Senate, especially in reference to folks who have refused to comply with House subpoenas to appear, including Acting Chief of Staff Mick Mulvaney, and whether he and the others might be forced to testify in the Senate. They also talked about whether that would hurt or help the Dems, and whether there would even be witnesses; Clinton's impeachment didn't have any.

And they talked about impeachment generally, with Abrams reminding that it's both high crimes (pointing out bribery and treason) and misdemeanors, "high and low" as he described it. The founders, he said

intentionally wanted it to be kind of vague. They wanted to talk about wrongdoing generally. So, when we talk about bribery, it doesn't necessarily have to adhere to the statute, because the statute didn't exist when bribery was put in to the Constitution and talk about impeachment. So it's going to be very interesting as these articles move forward and the word 'bribery' is there potentially. Are they talking about bribery as the Founders thought of it? Which is just kind of pay-offs, kind of improper activity, etc. That's what they were worried about, not the federal statute. 

Murray agreed with George that the founders were worried about foreign intervention in our country,

And that is clearly implicated here. And it's also implicated in the emoluments case which seems like 500 billion years ago. But it's certainly relevant for this....But I don't think they have the opportunity to completely take that (the federal statute) off the table... the have to look at the modern model if only to sort of understand what we're working with today.

Comstock noted that, as divided as we are, we're going to see a divided impeachment; the House will vote to send articles to the Senate, and barring any additional witnesses or something, we'll see the Senate vote to acquit. "And then the public will decide in November."

They also talked about Supreme Court Chief Justice John Roberts, who will preside over the Senate trial. Shaw noted Roberts will be able to define his role as he see fits, saying he might take the same position that Chief Justice William Rehnquist took during the Clinton impeachment - more of a "ceremonial and ministerial role." Abrams agreed with Shaw.

I think the idea that somehow Chief Justice Roberts is going to be a hero for the left in there and he's going to force witnesses to testify and the Senate is going to have to overturn, I think it's a pipe dream. The reality is, it's going to be based on Senate votes. 

Murray noted that SCOTUS has a big year ahead of them, even without impeachment.

It's going to be a really explosive year for the Court, I think, and I think that Chief Justice Roberts is at great pains to keep the Court out of the political fray. I think his model, again, is going to be his own justice, Chief Justice William Rehnquist, who said of his role in the Clinton impeachment, "I did nothing in particular and I did it very well."

Turning to strategy, George wondered if they thought the Senate was going to move even closer to the president's strategy (discussed above). Comstock thinks so, for many senators, and even though the president seems intent on having lots of witnesses,

I think you're going to see Mitch McConnell will keep a tight rein on this. He wants a short trial. He does not want this to be a circus. I do think the White House probably would like to have a Senate trial very much like the Corey Lewandowski hearing in front of Jerry Nadler that -- that was such a circus. So that's kind of what they're threatening and what they would like.

And she offered some insight into some breaking news from late last week.

But I do think the reason you had, for example, Lindsey Graham come out and say that he's going to do the investigation of the - Hunter Biden and those matters is so that they don't have to deal with that issue on the Senate floor. 

There was some discussion on the House backing off impeachment and moving to censure instead. Abrams said he actually thought about that this morning, for the first time. Comstock said it's more likely that the Senate might do that, but in the end it's hard for any of them to think that the House would back off now. Here's Murray to close things out.

I don't think you unring this bell. I mean, this bell is going to get rung.

And all I can think of is Christopher Walken and Will Ferrell and more cowbell...

See you around campus.