In his impeachment preview, Scott notes that on Wednesday, the House Judiciary Committee will begin its hearings by taking testimony from four law professors: Pam Karlan, Noah Feldman, Michael Gerhardt, and Jonathan Turley. It’s easy to ridicule leading off with law professors, and it’s true that doing so isn’t the best way to capture the public’s interest.
Logically, however, it makes sense to begin the hearings by discussing the standard for impeaching a president. One can then analyze the evidence through the prism of the standard.
But this assumes that the discussion of the standard isn’t filtered through the prism of partisanship and/or raw hatred of this president. Will any of the four professors provide a non-result driven analysis?
By all accounts, Pam Karlan, a professor at Stanford Law School, is a brilliant teacher and lawyer. However, she’s also a left-liberal activist and an outspoken critic of President Trump since before he took office. There’s no reason to suppose that her testimony won’t be heavily influenced by her politics and her highly negative view of Trump’s presidency.
Noah Feldman teaches law at Harvard. I know nothing about his legal scholarship. However, I did read his biography of James Madison. It’s impressive.
But Feldman’s view of impeachment is idiosyncratic, at least when it comes to President Trump. He has suggested that Trump could be impeached for his criticism of the press, including his labeling the press as the “enemy of the people.” This is absurd on its face.
Feldman also told the New Yorker that Trump’s alleged pattern of seemingly trivial uses of public office for private gain “can add up to an impeachable offense.” He cited the State Department’s official Web page that showcased Trump’s private, for-profit club, Mar-a-Lago.
Feldman may be correct in theory about the possibility of small instances of corruption adding up to something impeachable. However, he seems obsessed with concocting arguments for impeaching Trump. His testimony should be viewed in that light.
Unlike Feldman, Michael Gerhardt, who teaches law at the University of North Carolina, hasn’t seemed overeager to impeach Trump. Or at least he has kept his powder dry.
Moreover, Gerhardt was a joint witness during the Clinton impeachment proceedings. In other words, both sides of the aisle trusted him to provide objective testimony. This time, though, he’s exclusively the Democrats’ witness.
Gerhardt testified during the Senate confirmation hearings on Justice Alito. You can read his testimony here. He told Senators they should consider Alito’s ideology and the fact that it varies significantly from that of Justice O’Connor, whom Alito would replace. However, his testimony was more of a road map for which issues to consider than a screed against Alito.
It’s possible that, in the current proceedings, Gerhardt’s analysis will not be infected by partisanship or hatred of President Trump. But given the widespread partisanship and hatred of Trump among law school academics, it’s also possible that his testimony will be so infected.
During the past two decades, Jonathan Turley, a law professor at George Washington University, has taken positions that fall on both sides of the political divide. Recently, his positions, at least the ones I’ve seen him take on Fox News, have been pretty staunchly pro-Trump.
During the Obama years, House Republicans hired Turley as their lawyer in a case that challenged a portion of Obamacare. The Republicans argued that Obama exceeded his authority in unilaterally funding a provision that sent billions of dollars in subsidies to health insurers. They prevailed in U.S. district court.
Democrats may believe that Turley’s past role as counsel to House Republicans makes him a less than nonpartisan witness in impeachment proceedings that have no support from House Republicans.
The fact that a given law professor is biased against (or for) Trump doesn’t mean that his or her arguments are wrong, or that they should be ignored. It does mean, however, that we cannot be confident that the professor’s testimony would be the same if the president in the dock were a Democrat.
This means that no special weight should be given the professor’s arguments, no matter how distinguished he or she may be.