The House Judiciary Committee held hearings with legal scholars Wednesday on the issue of impeachment, explaining the framers' intentions in laying out the impeachment process in the Constitution and giving their opinion on whether President Donald Trump's alleged actions meet the criteria. Among those testifying was Harvard Law Professor Noah Feldman, who spoke with WGBH All Things Considered anchor Arun Rath on Thursday. This transcript has been edited for clarity.
Arun Rath: So we'll talk about details, but if we could get inside your head for a moment, think about the day before yesterday. You're going to be speaking before Congress and a national audience about subjects of extreme importance you've been studying your entire professional life. I can't imagine things you'd be more passionate about. And you get this opening statement to frame it all. I'm just wondering, as you put pen to paper, or fingers to the keyboard, what is going through your head? What did you want to set out to accomplish?
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Noah Feldman: You know, when the republic is going well, constitutional law isn't that important of a subject. And it's only when suddenly the country finds itself in serious trouble that my job actually, I hope, only briefly becomes relevant. So what I was thinking about is, How can I sum up and crystallize basic truths about the Constitution and what it's for in a way that will be compelling and accessible to everybody who's trying to listen? Because most of us are just trying to figure out what's the right way to think about the issues in front of us now.
Rath: Obviously, testifying is a lot different from lecturing, but I'm wondering if teaching students about the Constitution prepared you in any way for trying to teach Congress about the Constitution?
Feldman: Well, it definitely helps, but I think the job of educator is — it's a noble job, and I love doing it, but your students are, in fact, students, and they see themselves as there to learn. Congress and the public aren't necessarily there to learn. They're there to make decisions. So really, my job was to try to give them the information that would be useful to them in Congress. And similarly, for the public, to give busy people with busy lives information that can actually be useful for them.
Rath: You were unequivocal about whether or not the allegations against the president merit impeachment. You said that Trump's actions are exactly what the framers had in mind when they put impeachment in the Constitution.
You said, "It's very unusual for the framers' predictions to come true that precisely. And when they do, we have to ask ourselves, someday we will no longer be alive and we'll go wherever it is we go. The good place or the other place. And, you know, we may meet there, Madison and Hamilton, and they will ask us, When the president of the United States acted to corrupt the structure of the republic, what did you do?"
That almost sounds like the kind of rhetorical device you might use to help a student understand it.
Feldman: To be honest, I wasn't thinking of it as a rhetorical device. I was thinking of it in terms of what I've asked myself. You know, I asked myself repeatedly when trying to figure out what's the right thing to do here. What's the standard we should hold ourselves to? And I really do imagine — and, you know, it's a metaphor — but I really do imagine what I would do if I were face-to-face with Madison and with Hamilton. And it so happens that those are people who are central to the creation of our republic. And I do feel, in a metaphorical sense, some real feeling of responsibility to them.
Rath: You could also offend some people, and I guess apparently you did, speaking for the founding fathers, for the dead founding fathers. One of the other witnesses, Professor Jonathan Turley, seemed to kind of talk about it dismissively by talking about it as academics engaging in this kind of necromancy. I think one person even compared it to a seance. Is that fair, or is this a way to help this play for the largest audience?
Feldman: I think it is unfair, especially coming from people who call themselves originalists. I mean, originalists are always asking themselves exactly the question of, What would the framers think under present circumstances? And of course, you can't literally bring them back to life. But what it is to ask about what the framers would have done is to wonder whether the values that they explicitly stated and the concerns that they explicitly articulated are relevant to us today. And sometimes you might think they're not relevant, but they did design a set of institutions that, although developed with time, are still with us. So when they thought about something that should be directly relevant to our thinking, I don't think that's seance. That's the way we do good, hard questioning about the structure of our Constitution and about what our values are.
Rath: Well, there is a kind of cognitive dissonance. Yesterday, not to sound partisan about this, but a lot of the representatives, I believe, on the Republican side were people who might have come in with the Tea Party wave and are people who certainly revere the Constitution, at least in terms of how they talk about it. Again, it didn't quite seem to connect somehow.
Feldman: I was frustrated that so few of the Republican committee members directly addressed the question of what the framers would, in fact, have thought and what the framers' values, in fact, were. And to me, that is telling. You know, in another situation where they think that the framers are on their side, I don't think there's much doubt that they would invoke the framers. They also didn't do much questioning of the witnesses, who were called by the Democratic side of the committee, myself included.
Rath: Well, because that happened, I'm sort of curious to have you respond a bit to the opposing view that we heard from Jonathan Turley. First, though, as a general point, having been in the media for years, I'd always thought of Professor Turley as someone a reporter like me would turn to for a view skeptical of executive powers. And in fact, he testified in the Clinton impeachment 21 years ago in favor of impeaching President Clinton. Has he changed his mind or is there a shift?
Feldman: Well, it's a little quirky that he favored the impeachment of Clinton and now disfavors the impeachment of Trump. That said, the defense that he's offering for those two things is that he thinks that if you're going to impeach the president, it should be for something that's a crime on the statute books, which perjury was. I think that gets impeachment completely wrong, as a constitutional matter. The Constitution says you impeach for high crimes and high misdemeanors, not for ordinary statutory crimes. And, you know, if you think about it, perjury, which is what Bill Clinton was accused of, is not necessarily a crime against the state itself. It's not a political crime. And Clinton, if he committed it, didn't commit it specifically in conjunction with his office. In contrast, what Trump did may or may not have been a crime in the statute books. I mean, some of it may have been, some of it may not have been. But it certainly was a political crime in the sense that it was a crime connected to the abuse of his office. And for that reason, I think that Professor Truley's position is just indefensible.
Rath: There was the other argument which he advanced, essentially that the Democrats were rushing the process, they should let the courts decide on process. And they're sort of carrying this political divide, and making it illegitimate.
Feldman: That's even more inexplicable because, of course, the Republicans are saying that this is taking too long and they want it to be over more quickly. And the reason that it's taking as long as it has taken is that President Trump has stonewalled, and this in itself is a violation of the Constitution, but he refuses to cooperate in any way with the impeachment inquiry. And so when Professor Truley then says, well, you know, it really has to go on for longer, the question is how? I mean, it couldn't really go on for longer unless Trump agreed to participate in it. So Democrats have now called all the witnesses that they can call without Trump's interference. And they've got the data they need and they've also got the record of the call. So, frankly, the suggestion that they don't have direct evidence seems to me fundamentally wrong. The memorandum of the call is the textbook definition of direct evidence.
Rath: So Professor Feldman, is your duty now done, or could we expect to see you again before the House, or maybe even the Senate?
Feldman: Well, my job is to keep on explaining the Constitution. And I think of our conversation now and things that I write and say about this is every bit as important as conversations that may take place under oath, in testimony. If called, I will happily appear. But even if I don't appear, I'll keep on describing what the constitutional requirements are here and trying to explain that as best as I can and try to contribute to the conversation that way.
