House Judiciary Academic Witness List Filled With Trump Critics

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
December 3, 2019 Updated: December 4, 2019

The House Judiciary Committee has summoned four constitutional law scholars, many of whom have criticized President Donald Trump and defended the impeachment inquiry, to kick off the committee’s first impeachment hearing.

Harvard Law School’s Noah Feldman, Stanford Law School’s Pamela Karlan, The University of North Carolina School of Law’s Michael Gerhardt, and George Washington University Law School’s Jonathan Turley will testify on Wednesday in the hearing (pdf) focused on laying the constitutional grounds of the impeachment inquiry.

House Democrats, who launched the inquiry in September, are making the case that the president leveraged his office to pressure Ukraine and withheld military aid to the country to investigate a political rival—2020 candidate Joe Biden. Meanwhile, Republicans have remained firm in their position that there has been no evidence in Trump’s conduct in his dealings with Ukraine that constitutes an impeachable offense.

The list of academics scheduled to testify tomorrow includes pundits who have been critical of Trump or have openly supported a case for impeachment against the president. The selection of witnesses has attracted criticism from the committee’s ranking member Doug Collins (R-Ga.) who slammed the Democrats for calling in “ZERO fact witnesses” and former independent counsel Ken Starr who warned about the political bias each the academic witnesses might bring to Wednesday’s hearing.

Noah Feldman

Feldman, whose research mainly focuses on law and religion, is a columnist for Bloomberg who has regularly defended the impeachment inquiry. He was one of the first to argue that Trump had abused his power to seek an investigation from the Ukrainian president in order to seek “dirt” on his political rival Biden.

“What makes Trump’s alleged conduct so terrible is not that he froze aid to Ukraine for a policy purpose. What makes Trump’s alleged conduct outrageous is the appearance that he was doing it for his own personal benefit,” Feldman wrote on the same day the impeachment inquiry was announced.

In an Oct. 20 op-ed titled “Trump’s Quid Pro Quo Is Unconstitutional,” Feldman rebuffed White House Chief of Staff Mick Mulvaney’s claim that the president has the constitutional authority to conduct foreign policy, which allows him to withhold aid to any country for any reason. He continued to argue that Trump’s withhold of aid to Ukraine was to advance “his own partisan interests” while urging Democrats to counteract Mulvaney’s claim.

Feldman reiterated his position on the impeachment inquiry during an interview with PBS, saying that at first look the president had committed an impeachable offense.

“What matters is that the president is overtly saying to Ukraine do these investigations and the only party that could benefit from these investigations is Donald Trump,” he said during the interview in October.

Feldman has also written an op-ed to urge Democrats to make the previous closed-door hearings public.

According to his biography, Feldman had co-authored one article reviewing two books on impeachment in the popular journal The New York Review of Books in 2017 against the backdrop of special counsel Robert Mueller’s investigation into allegations that the Trump campaign had colluded with Russia to influence the 2016 presidential election.

Pamela Karlan

Karlan is a professor of public interest who currently serves as the chair of the board of directors for the progressive American Constitution Society (ACS). She is the least vocal about impeachment out of the four witnesses. Many of her recent op-eds are related to the Supreme Court and on an LGBTQ case, where she is representing two gay men in a workplace discrimination case.

She also served as the Deputy Assistant Attorney General in the Civil Rights Division in the Justice Department during the Obama administration.

Karlan was among 42 constitutional law scholars who signed an open letter (pdf) to Trump in 2016, just before his inauguration, urging him to change his stance on a number of public issues while criticizing several of his proposed policies.

“We feel a responsibility to challenge you in the court of public opinion, and we hope that those directly aggrieved by your administration will challenge you in the courts of law,” the letter read.

Michael Gerhardt

Gerhardt, who is a professor of jurisprudence, is no stranger to congressional hearings having testified about impeachment during former President Bill Clinton’s impeachment proceedings in the House. He has authored the books “Impeachment: What Everyone Needs to Know” and “The Federal Impeachment Process: A Constitutional and Historical Analysis,” and previously been sought by lawmakers from both sides of the aisle in order to hear his expertise.

Gerhardt, who is the ACS faculty member at the University of North Carolina, has publicly expressed his criticism of Trump over the impeachment inquiry, where he argued the president “has dismissed the rule of law as being relevant to his life.”

“Some of us who still take the Constitution rather seriously believe that those articles of impeachment that had been approved against Richard Nixon turn out to be relevant, as well, to the misconduct of President Trump,” Gerhardt said during an interview last week with Slate’s Dahlia Lithwick. “First, he has obstructed justice a variety of different ways. Second, he has asked the president of a foreign country—actually asked the presidents of a few different countries—to intervene in the next election on his behalf. And then third, he has refused to comply with more subpoenas than most people can count.”

Earlier in the month, Gerhardt wrote an op-ed for Atlantic arguing that the impeachment inquiry is “fully legitimate” because “the Constitution leaves it to the House alone to determine how to initiate and conduct an impeachment inquiry.”

He also called Trump and his allies’ defense against the inquiry “dangerous,” saying that the president’s criticism of the inquiry by calling it “partisan” “unfounded” or a “witch hunt” is “completely devoid of any credible analysis of either the rules or the Constitution.”

Michael Gerhardt is also a CNN legal analyst who was a regular on the network during the Clinton impeachment process.

Jonathan Turley

Turley has defended the president on a number of legal issues and criticized House Democrats for their handling of the impeachment proceedings.

He testified in the House during the Clinton impeachment proceedings in 1998 and represented Judge G. Thomas Porteous in his impeachment trial, according to his website.

Turley, who is a professor of public interest law, has written many op-eds about impeachment and is currently a legal analyst for CBS News.

In a recent op-ed in The Hill, Turley defended Trump from the Democrat’s claim that he is trying to “gag” every executive official from testifying in the inquiry while arguing Democrats have a weak impeachment case.

“Yes, the Trump administration did tell executive officials not to testify, and I have disagreed with that position, as well as the underlying claims of privilege and immunities. However, several officials have testified despite the White House position,” he wrote while listing the executive officials who have testified. “All remain in federal service in good standing.”

He also criticized the Democrat’s interpretation of the word “bribery” in an op-ed for The Wall Street Journal late last month.

Earlier this year, Turley argued that Trump fell short of obstructing justice in the Mueller investigation.

Professor Robert G. Natelson, a law professor for 25 years who heads the Independence Institute’s Constitutional Studies Center, told The Epoch Times in an email that he did not think this was a credible effort to construct a useful panel.

“The list includes no presidential historians or English historians who could tell us about standards applied in previous impeachments. It includes no law professors who are notable for their defense of presidential power (e.g., John Yoo of Berkeley) nor any conservative or libertarian law professors who have written on impeachment (e.g., John McGinnis of Northwestern),” he said.

He also added that two of the academics—Feldman and Karlan—did not appear to have scholarly research papers on the subject of impeachment, citing a search on the Westlaw legal database.

The president slammed House Democrats on Monday for scheduling their impeachment inquiry hearing during this week when he is abroad in London for NATO meetings. His comments come a day after the White House said that it would not participate in Wednesday’s hearing.

White House Counsel Pat Cipollone said in a letter to the Judiciary Committee Jerrold Nadler (D-N.Y.) on Dec. 1 that “an academic discussion with law professors does not begin to provide the president with any semblance of a fair process.”

Update: Article updated with further information about Noah Feldman’s publications and email statement by Professor Robert G. Natelson.

Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.