Heading into the 2020 presidential campaign, US President Donald Trump seeks reelection while battling a field of Democratic contenders, and a continuing impeachment drama. On January 15, the House voted to name seven impeachment managers who will prosecute the case against Trump in a Senate trial which is expected to kick off Tuesday.
On December 4, leading up to the upcoming trial, Harvard Law School Prof. Noah Feldman was one of four legal scholars from separate universities who testified in Washington, DC, before the House Judiciary Committee hearing on the impeachment of US President Donald Trump.
It was a weighty responsibility, but Feldman is no stranger to sharing his expertise, even in improbable situations. He served as an adviser in the drafting of an interim constitution for Iraq in 2003.
The widely renowned constitutional expert holds the position of Felix Frankfurter Professor of Law at the Ivy League school and comes from a Modern Orthodox family. Today he heads Harvard Law School’s Julis-Rabinowitz Program on Jewish and Israeli Law, which brings a variety of speakers to campus each semester. For the 2019 fall semester, the program culminated with the first-ever conference on Mizrahi — or Jewish Middle Eastern — legal studies, which brought both Israeli and Palestinian panelists to Cambridge.
The impeachment issue carries a high degree of historical gravitas. When the House approved two articles of impeachment against Trump on December 18, he became just the third chief executive in almost 250 years of US history to be impeached.
In a recent phone interview with The Times of Israel, Feldman described testifying in front of the Judiciary Committee this past December as “definitely a life experience.”
Addressing what Feldman described as a key July 25, 2019, phone call between Trump and Ukrainian President Volodymyr Zelensky, the Harvard Law scholar delved into hundreds of years of legal history, much of it predating the US.
The first recorded instance of impeachment for high crimes and misdemeanors took place in England in the year 1386, said Feldman. “High crimes and misdemeanors as an impeachment precedent comes out of that English tradition,” he said.
In prepared remarks for the House committee, Feldman wrote that “the essential definition of high crimes and misdemeanors is the abuse of office.” And, he wrote, “The classic form… of abuse of office is using the office of the presidency for personal advantage or gain, not for the public interest.”
Feldman told The Times of Israel that the Founding Fathers would have been familiar with several 18th-century impeachments in England, such as that of Lord Macclesfield, the kingdom’s Lord Treasurer, who was impeached in 1725 “for abuse of office, taking bribes in exchange for recommending people for positions in the judiciary or around the judiciary.”
After America won independence, the founders continued paying attention to events in the former mother country. While the Constitutional Convention was taking place in 1787, the framers noted that Warren Hastings, the British governor-general of Bengal, was being impeached by the House of Commons. “It was very much on their minds,” Feldman said.
During the convention, some of the founders proposed removing a provision for impeachment from the draft of the Constitution, with one reason being that the risk of losing reelection would be sufficient deterrence, Feldman said. He added that this prompted counterarguments that “if you had no way to impeach a sitting president, he would spare no means whatsoever to get himself reelected” — leading to an “overwhelming” vote to keep impeachment in the Constitution.
The tool was first used in 1868, shortly after the Civil War, against Republican Andrew Johnson, who was acquitted in the Senate by one vote. More than a century passed before the second such impeachment, against Democrat Bill Clinton in 1998; he too was acquitted by the Senate. Between these trials, Republican Richard Nixon resigned in 1974 rather than face impeachment.
A fateful phone call
Feldman’s testimony before the House committee hinged on the July telephone call between Trump and Zelensky. He told The Times of Israel that this call represents “the core of an impeachable offense, the archetype of an abuse of office for personal gain.”
“What we learned about it in testimony bears this out: One can hear the president of the US using the power of his office to ask the president of Ukraine for a favor — in this case, of announcing investigations of Joe Biden, who was at the time a leading candidate of the Democrats to run against Donald Trump in 2020,” Feldman said.
Feldman said that Trump “could not have made that call if he was not the president of the US,” and that “at the same time, he was freezing necessary military aid to Ukraine.” He added, “It does not matter whether or not there was a quid pro quo.”
“Donald Trump was abusing the power of his office to corruptly seek advantage in the 2020 presidential election,” Feldman said. “It’s the essence of an impeachable offense.”
Feldman described two of his fellow scholars on the panel — Pamela Karlan of Stanford Law School and Michael Gerhardt of the University of North Carolina School of Law in Chapel Hill — as also making a case for impeachment.
“Prof. Karlan focused her remarks on the distortion of the electoral process and why it’s so problematic,” Feldman said. “She’s a world-renowned expert on law and democracy. Prof. Gerhardt has written two books on impeachment. A lot of his testimony was about what impeachment is, what it’s for, and how it’s clearly covered in this situation.”
There have been counterarguments, of course, including those presented by Jonathan Turley of the George Washington University Law School, who was called by the Republican House minority.
Feldman was also closely queried about his positions on impeachment during the designated question and answer session by Republicans, including Congressmen Matt Gaetz of Florida and Andy Biggs of Arizona.
According to a press release on Gaetz’s website, the congressman questioned Feldman about the professor’s past authorship of “articles entitled ‘The President’s Wiretap Tweets Raise Risk of Impeachment’ and ‘Mar-A-Lago Ad Belongs in Impeachment File.’”
Feldman said that there is a distinction “between saying conduct qualifies for impeachment and between conduct that should be impeached.”
“I did not think it was a good idea for the House to impeach the president on the basis of [the Mueller Report]. Only when I saw the July 25, 2019 phone call memo did it change my mind — okay, this was so clearly impeachable, so outrageous, that president needed to be impeached,” he said. “I tried to explain this to the House members. They can ask questions, but it’s hard for you to answer. I did my best.”
A proponent for the reading of ‘forbidden texts’
The Julis-Rabinowitz Program on Jewish and Israeli Law may have done its share in preparing Feldman for his trip to Washington. He praised the program for its work this semester on “representing many different perspectives, deeply in opposition on certain questions.”
This included, he said, holding a reading group for forbidden texts in Jewish law; hosting Israeli ambassador to the US Dani Dayan for an address that was protested by some students; and “also [having] some speakers from the left of the political spectrum,” including at the Mizrahi legal studies conference.
“I’m very proud in the Julis-Rabinowitz [Program] we have extensive openness to exciting connections to every stream of contemporary Jews, from haredi [ultra-Orthodox] and yeshiva to Modern Orthodox to national Zionist to Conservative, Reform, Reconstructionist and other progressive Jewish denominations,” Feldman said.
He notes that the namesake of his day school alma mater, Maimonides, lived a life of complexity and nuance.
“Moses Maimonides lived his whole life in the Muslim world,” Feldman said. “He was affected by Islamic modes of thought and by Islam. In some ways he was deeply in polar opposition to Islam and expressed strong messages of being victimized and oppressed by Muslims.”
Nevertheless, Feldman said, “he took refuge in Egypt, became a Jewish communal leader, became a personal physician to the sultan, read very widely in Islamic philosophy and recommended Islamic prayer books to his students.”
Feldman, the former adviser on the writing of the Iraqi constitution, said, “The complex reality of Maimonides’s world made me interested in Arabs and Islam. It’s always fascinating to study both historically and in the present.”
He will turn his attention back toward the Middle East this spring upon the publication of his ninth book, “The Arab Winter: A Tragedy,” by Princeton University Press. He describes the book as a chronicle of “the Arab Spring and its aftermath and its failures.”
The current era represents “a relative stress test, globally, for constitutional democracy, not just in places like Turkey or Poland,” he said. “It’s also true in mature constitutional democracies like the US, and it’s also true in the democratic world in Israel. I am deeply committed to the capacity of constitutional democracy as a form of government, to provide basically a just government under the law, basically a functional government for running a country.”