Trump Blocked Key Impeachment Witnesses. Should Congress Wait?  12/04/2019 18:50:07   Charlie Savage

At the first House Judiciary Committee impeachment hearing, Republicans witness said lawmakers were rushing impeachment and should instead let court fights over access to witnesses play out.

Jonathan Turley, a law professor at George Washington University, said Congress had assembled a facially incomplete and inadequate record in order to impeach a president.
Jonathan Turley, a law professor at George Washington University, said Congress had assembled a facially incomplete and inadequate record in order to impeach a president.Credit...Erin Schaff/The New York Times
Charlie Savage

WASHINGTON  Are House Democrats making a mistake by moving swiftly to impeach President Trump while there are still substantial gaps in the factual record for deciding whether he abused his powers in the Ukraine affair?

That was the argument put forward on 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 Committees opening impeachment hearing.

Mr. Turleys point crystallized 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 Houses ability to use its impeachment power in practice.

Calling the abbreviated period of this investigation both problematic and puzzling, Mr. 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 Mr. Trumps 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.

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, Mr. Gerhardt testified.

Notably, Mr. Turley did not assert the president did nothing wrong, as hard-core supporters of Mr. Trump have done. He said that a now famous call in which Mr. Trump pressured Ukraines president to announce investigations that could benefit him politically was anything but perfect, and that Congress had a legitimate reason to scrutinize it.

But, he argued, it is premature to rush forward with impeachment while Congress has yet to obtain potentially knowable facts about what Mr. 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 defenses 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 Mr. 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 Ukraines president into announcing investigations that would benefit him politically.

In his longer written statement, Mr. Turley named three men who interacted directly with the president and might know more about what Mr. Trump said behind closed doors about Ukraine: Mr. Trumps former national security adviser, John R. Bolton; his personal lawyer, Rudolph W. Giuliani; and his acting chief of staff, Mick Mulvaney.

Mr. Bolton is known to have opposed what Mr. Giuliani was doing for Mr. Trump with Ukraine, met directly with Mr. 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, Mr. 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.

But Mr. 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 Mr. Trump not to cooperate with the House, while asserting that they are immune from being subpoenaed to testify about their discussions with the president.

Mr. 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 Congresss claimed power to compel his testimony, or the presidents claimed power to block lawmakers from receiving it, should prevail.

The Trump legal teams claim of absolute immunity for top presidential aides has been a losing one in court. A Federal District Court judge already rejected it in a 2008 case involving a congressional subpoena to Harriet Miers, President George W. Bushs former White House counsel. Another trial judge rejected it again late last month, in a case centering on a subpoena to Donald F. McGahn II, Mr. Trumps former White House counsel.

But the legal unraveling of Mr. Trumps argument has been a slow process. The opening stage of the fight over the subpoena to Mr. 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 Mr. Trump on the ground that their contents are privileged. That would start a new cycle of litigation.

That means that for the witnesses Mr. 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 Mr. Turley said that Mr. 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 Mr. McGahns 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.

Against that backdrop, Pamela S. Karlan, a Stanford law professor invited by Democrats to testify who said Mr. Trump should be impeached for abusing his powers, suggested that the decision facing lawmakers was a gut call.

Referring to a piece of evidence Mr. Trumps allies do not dispute  the White Houses record of a July 25 call between Mr. Trump and Ukraines president  she invoked an analogy: the governor of a state hit by a hurricane or flood asking for a meeting with the president to discuss disaster assistance provided by Congress. She asked what would happen if the president replied: I would like you to do us a favor. Ill meet with you and Ill send the disaster relief once you brand my opponent a criminal.

Ms. Karlan said: Wouldnt you know in your gut that such a president had abused his office, that he betrayed the national interest and that he was trying to corrupt the electoral process? I believe that the evidentiary record shows wrongful acts on that scale here.

Still, the White House call record was not that explicit. Mr. Trump did respond to the Ukrainian presidents mention of military assistance by saying I would like you to do us a favor, though and then talked about his desire for investigations, including into former Vice President Joseph R. Biden Jr. and his son, but the call record does not show that Mr. Trump explicitly made such investigations a condition for the meeting and the military aid.

The question facing Congress, then, is whether the available record, while imperfect, is nevertheless sufficient to fairly deduce that Mr. Trump was the architect of a quid pro quo  or whether to wait for the distant prospect of someday obtaining more facts through court.

Republicans on Wednesday ran in part with Mr. Turleys theme. Representative Doug Collins of Georgia, the top Republican on the committee, emphasized that the facts of what Mr. Trump did are disputed, unlike those during the Nixon and Clinton impeachment proceedings.

There are no set facts here, Mr. Collins said, adding: This is not an impeachment. This is simply a railroad job.

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