Source: FAIR

Janine Jackson interviewed legal scholar Marjorie Cohn about the impeachment of Donald Trump for the December 20, 2019, episode of CounterSpin. This is a lightly edited transcript.

Janine Jackson: The House of Representatives has impeached Donald Trump, only the third president in history. If some observers have their way, it would be more than Trump losing his job; media critics are over stories like the recent New York Times front-pager on what it called “different impeachment realities,” that used the phrase “both sides” four times, and they’re calling for a shake-up in leadership at the paper.

It’s more than a media critique. Reporting that suggests that impeachment is all about who you listen to is a profound disservice to people whose country is in crisis, who deserve a press corps invested in separating fact from fantasy and advancing democratic principles, especially in the face of efforts to vitiate them.

We’re joined now by Marjorie Cohn, professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and editor of, and contributor to, the book Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, which is out from Olive Branch Press in a recently updated edition. She joins us now by phone from San Diego. Welcome back to CounterSpin, Marjorie Cohn.

Marjorie Cohn: Thanks so much for having me, Janine.

JJ: A straightforward kind of legal scholar question: It’s true that the law and the Constitution can be interpreted, but what has come through from a lot of the coverage is that legally, whether Trump has done anything impeachable is up for debate. Is that true?

MC: Well, the Constitution gives the House of Representatives the sole power of impeachment, and that means that it’s up to the House of Representatives to define what is impeachable conduct.

So Trump was impeached yesterday for abuse of power and obstruction of Congress. Abuse of power was also one of the articles alleged against both Nixon and Clinton, and it goes to the very heart of what the Founders feared, which was that a president would harm the national interest by pursuing his own personal interests. And that is why abuse of power is one of the articles of impeachment, and it was supported by overwhelming evidence.

The Democrats discussed the evidence throughout all of these hearings, including the hearing yesterday; the Republicans focused more on process, didn’t really meet the substantive issues. They argued that impeachment requires the commission of a crime. It’s well-settled that it does not. And the Senate Judiciary Committee transmitted a 683-page report to the House of Representatives explaining why abuse of power is a classic impeachable offense, and they drew upon the debates during the Constitutional Convention; things that have been written since, including the Federalist Papers; and the practice of impeachment itself.

The Republicans also distorted the facts, falsely asserted that Ukraine did not know Trump was withholding the military aid. They said that Ukraine got the aid and the head-of-state meeting without publicly announcing the launch of Trump’s desired investigations. In fact, Trump released the aid only after he got caught, and there still has not been a head-of-state meeting.

And another thing that they talked about was that the courts should decide whether or not Trump has the power to basically immunize all executive branch witnesses who are called to testify, and deny the production of any documents. And they would like to slow it down; they think that it was speeded up too much.

JJ: What about that “absolute immunity” that we hear references to? I mean, there are matters of fact, where even though it might be hard to dig them up, you can find them, like the sequence of events involving Ukraine. But then there’s reference to these legal precepts that people might feel they’re not sure really what the reality of that is. So Trump keeps talking about “absolute immunity,” like it’s a cloak of invisibility or something. What is the grounding there, or is there grounding?

MC: Interestingly, when Mitch McConnell came on TV this morning—actually, he was in the Senate, and it was televised–to explain his position and the Senate’s position—he said that Trump was impeached partly for asserting executive privilege and denying these witnesses and documents.

And in fact, that’s patently false. Trump has never asserted executive privilege; he asserted instead, as you say, this “absolute immunity.”

Now, “absolute immunity” does not appear in any Constitution or statute or case law. It is a creation of the Department of Justice’s Office of Legal Counsel, and, in fact, no court has ever upheld it. It is wending its way through the courts, and the most recent court to deal with that issue says no, the executive does not have “absolute immunity,” and that federal district court judge said that, you know, the president is not a king.

The reason that the Founders put three co-equal branches of government into the Constitution was to check and balance each other. The House of Representatives, the congressional, the legislative branch, has the sole power of impeachment.

Now if the executive branch, the president, has the right to determine whether or not any witnesses can be called, or any documents produced, then that strikes at the very heart of separation of powers.

Now this is an issue, Janine, that is becoming very interesting as the case moves into the Senate for trial, because there’s an assumption that once the House of Representatives votes for impeachment, impeaches the president—that’s like an indictment—then the case is automatically transmitted to the Senate for trial.

But Mitch McConnell has made no bones about the fact that he thinks there’s going to be a preordained acquittal, he’s prejudged the case. And he says, I’m not impartial, I have no intention of being impartial, even though the senators sit as jurors in the trial in the Senate, and take an oath to be impartial.

So Chuck Schumer, the Senate minority leader, has said, “Well, we would like to call some witnesses.” The House of Representatives sends what are called “managers” to the Senate trial to prosecute the case; they’re like prosecutors. And he has proposed four witnesses—and they’re all executive branch witnesses, they’re Trump appointees—to testify during the Senate trial, and that includes Mick Mulvaney, acting chief of staff; former national security advisor John Bolton; White House aide Rob Blair; and, from the Office of Management and Budget, Michael Duffey. And also, Schumer has said that we are going to need production of documents for the House managers to prosecute the case in a fair way.

McConnell has basically pooh-poohed that, and McConnell would like a streamlined proceeding, just a rubber-stamp “Not Guilty.” Trump, on the other hand, wants a big show. He thinks that making a big case on television would be in his favor. So they are partially at odds there.

But McConnell has made very clear that he is coordinating every single aspect of the trial with the White House.  Now, I’ve been a criminal defense attorney for many years. And no jury ever coordinates the trial with the defendant ahead of time, asking the defendant what kind of procedure he or she wants. And no jury ever announces a not guilty verdict before the trial; it certainly would have helped a number of my clients, but it just doesn’t happen.

So McConnell kind of put his foot in his mouth when he announced that “total coordination with the White House,” and announced his refusal to be an impartial juror. So Laurence Tribe, a Harvard law professor, has been advocating a proceeding, and he’s been advocating it by Twitter and then most recently in an op-ed in the Washington Post, of basically withholding the transmission of the articles of impeachment to the Senate until there is a guarantee that there will be a fair trial in the Senate.

And Nancy Pelosi, the speaker of the House, had a news conference this morning, and all she would say about it is, “When we see the process in the Senate, then we will know how many managers to send and who the managers will be.” And so basically what she has done, relying on Laurence Tribe’s advice, is to shift the burden to McConnell to explain the process; it really kind of puts him in a bind.

And meanwhile, the House of Representatives has indicated that it will continue to investigate; there could be more evidence developed. But what they’re concerned with is a fair trial. And so, whereas it looked like a done deal—that the articles are going to go to the Senate, the Senate will acquit Donald Trump—the House of Representatives, Nancy Pelosi and the leadership, now have leverage by not providing the articles to the Senate to get going with the trial, unless and until they guarantee that there’s going to be a fair trial, or at least explain it.

Now, Chuck Schumer proposed these four witnesses to McConnell in a lengthy proposal, and also said, “Well, we’re not going to extend the trial, each witness would only occupy four hours; and this would be the first impeachment trial where there were no witnesses and where the House was prevented from fairly presenting their case.”

So now the ball is in McConnell’s court, and whereas it takes two-thirds of the senators to make a decision about acquittal in the Senate, it only takes 51 to decide procedural matters, such as the rules of the Senate. And it’s possible that the House could be recessing today. One of the things that Schumer proposed was a trial beginning on the 7th of January, which is the date they are supposed to come back. But it’s really fascinating now, because it’s not proceeding the way everyone thought it would, the Senate acting like a rubber stamp for Donald Trump. So stay tuned.

JJ: Yeah, and we also need reporters, I think, to elucidate what the problem will be. In other words, to make clear that the Senate’s hearings are meant to serve as a trial, and to make clear, then, what exactly McConnell messed up by stating outright, “There will be no difference between the president’s position and our position.” I think it does need to be clear what a breach of order that is.

I just want to say one thing about the context: We know the Trump strategy, it’s not a mystery. It’s for them to say, “We’re victims. Democrats will do anything to get rid of Trump,” adding up to, “This can’t be a legitimate process, because they don’t like me,” which isn’t a logical conclusion, but it’s not really meant to be. It’s a message to his base to interpret impeachment as an effort to “overturn the election,” and, therefore, an attack on them.

Media can note that that’s a strategy, but I worry if they aren’t kind of playing into it by allowing that to obscure what are fairly clear legal proceedings, and constitutional or congressional proceedings that have to happen.

MC: Yes, that’s a good point. One of the things that the Republicans continue to harp on, and McConnell talked about it this morning, was that as soon as Donald Trump was elected, and even before he was elected, Democrats were talking about impeachment. And there have been resolutions, impeachment resolutions, introduced into the House before, and there have been as many as 95 congressmembers who have voted for impeachment in the past, for trivial things, McConnell was intimating.

But, in fact, the response to that, and what I would like to see in the media, is that Nancy Pelosi and the overwhelming majority of the House of Representatives opposed impeachment until the whistleblower came forward, and the telephone call on July 25, between Trump and Ukrainian President Zelensky. came to light. And when that happened, then it became clear to everyone, including Nancy Pelosi, who had resisted impeachment for these past three years, that in fact this was impeachable conduct, and they had a constitutional responsibility to pursue it.

So I think that that needs to be pointed out, and the Republicans are going to continue to say, “This is overturning an election.” The logical extension of that argument is that there can never be an impeachment of a president who has been elected.

And yet the Founders put impeachment into the Constitution six times; the word “impeachment” appears six times in the Constitution. They were very, very worried about another King George, about the president becoming a king-like monarch, and that’s why they gave Congress the power of impeachment. So I think that if we were to see more of these counterarguments, or to round it out and balance the arguments that the Republicans are making, the coverage would be much more accurate.

JJ: We’ve been speaking with Marjorie Cohn. Her most recent book is Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, out in a recently updated edition from Olive Branch Press. Thank you so much, Marjorie Cohn, for joining us this week on CounterSpin.

MC: Thank you, Janine.

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