Get ready for the nation’s most protracted posting war and a whole new era of think pieces to come. Speaker of the House Nancy Pelosi (D-Calif.) announced the formation of “an official impeachment inquiry” into President Donald Trump on Tuesday evening.
Impeachment under the U.S. Constitution isn’t a strictly legal phenomenon, but in several respects the process of impeachment tends to function in ways akin to court proceedings and using the language of law. So, with that caveat out of the way, let’s take a look at what some legal experts had to say about the House’s latest effort of getting in position to get into position on impeachment.
Former acting U.S. Solicitor General Neal Katyal previously predicted an “ugly” process unfolding as the result of President Trump’s apparent strong-arm stance toward Ukrainian President Volodymyr Zelensky, prospective U.S. aid and the Joe Biden–Hunter Biden issue.
On news of Pelosi’s announcement, Katyal dialed things up a notch:
Been saying this [will get ugly] since the news started to break last Wednesday. This is a constitutional abomination and the House has to protect us and our Constitition [sic].
Former federal prosecutor Renato Mariotti explained why the president’s attempts to satiate his critics by releasing White House staff notes taken during the Zelensky phone call–which purport to show there was no quid pro quo discussed–are not likely to matter much to congressional investigators.
“The impeachable offense is that Trump allegedly pressured a foreign government to open an investigation to aid himself in the next election,” Mariotti said. “He made [sic] abused his office to help himself. Whether there was a quid pro quo was beside the point.”
(Note: the White House is describing the notes of the infamous Zelensky phone call as a “transcript.” There aren’t, however, official transcripts of White House phone calls. As alluded to above, White House staff typically take notes on such calls. Many members of the press, et al. are still describing those notes as a transcript.)
CNN Legal Analyst Elie Honig continued to develop the impeachment theory in line with the idea that Trump need not have predicated future U.S. aid on the action of Ukrainian prosecutors.
“The transcript does not have to spell out a quid pro quo,” Honig tweeted. “Fact finders can look at ALL the facts around the call (including withholding the money) and use common sense. And it doesn’t have to be a federal crime to impeach.”
That’s all true. Impeachment, for the umpteenth time, is not strictly legal. There is absolutely no requirement for any charges of impeachment. It’s based upon the House of Representative’s determination whether Trump committed what the U.S. Constitution refers to as “high Crimes and Misdemeanors.” If the House decides Trump’s plea for the Ukraine to initiate a Biden corruption investigation constitutes such a crime then Trump committed an impeachable offense. It’s really and truly as simple as that.
Yes, you could even impeach a president for gross incompetence.
Are you allowed to impeach a president for gross incompetence?
— Donald J. Trump (@realDonaldTrump) June 4, 2014
Recall: President Bill Clinton was impeached for perjury committed within the context of sexual impropriety and an ensuing cover-up. The term “perjury” sounds like law but the underlying consideration there was clearly political. Many argued at the time, and continue to insist to this day, that Clinton’s under oath lie about oral sex didn’t rise to the level of a “high Crime and Misdemeanor” but they’re wrong. The House decided those lies rose to such a level, so they did.
University of North Carolina Law Professor Michael Gerhardt was the only expert invited to speak behind closed doors to the entire House of Representatives and the only joint witness to testify before the full House Judiciary Committee during Clinton’s impeachment.
In comments to Law&Crime, Gerhardt predicted fireworks to come:
I think we are turning a major corner. The newest instance of possible misconduct is arguably worse than any committed up until now. The next few days and weeks will test the impeachment process. The charges are, if true, a classic impeachable offense. We will see whether Democrats press their case and how far and whether any Republicans have a problem with a president who places his own self-interest above that of the nation.
[Image via MANDEL NGAN/AFP/Getty Images]