Judiciary Committee Weighs Whether To Bring Articles Of Impeachment

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RACHEL MARTIN, HOST:

What is the constitutional standard for impeaching a president and is what President Trump did with Ukraine the kind of offense that meets that standard? That is the central question of today's impeachment inquiry hearing. This time, the House Judiciary Committee is in the lead, and the witnesses are constitutional scholars. This next phase was triggered after the House Intelligence Committee released its report yesterday. The report claims there is a, quote, "abundant" amount of evidence that shows Trump abused the power of his office for his own personal benefit.

Here's what committee chair Adam Schiff said yesterday in an interview with Steve Inskeep.

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ADAM SCHIFF: I don't think there's any question that the uncontested facts show this president solicited a bribe.

MARTIN: That question now moves to the House Judiciary Committee, which will ultimately decide whether to bring articles of impeachment against the president. Alan Baron served as special impeachment counsel to that committee. He has been part of the impeachment of four federal judges. Thank you so much for making time for us this morning.

ALAN BARON: Good morning.

MARTIN: I want to start by reading a little bit of the Constitution, if I could. This is the section that deals with impeachment. We're talking about Article 2, Section 4. It reads, the president, vice president and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors. Does the Constitution define those terms?

BARON: Well, treason and bribery are defined in the criminal law and in historical materials. High crimes and misdemeanors is unique. The first time we encounter it is in English law in the 14th century. And back in those days, it was a criminal case and where you could lose your head as well as your job. The framers imported that phrase into our Constitution 400 years after it had appeared in England. But obviously, they had - changed dramatically. Now you can't lose your head, but you can lose your job.

And of course, there - an additional feature is you can be barred from holding future federal office. So - but the meaning of high crimes and misdemeanors is unique. It doesn't have any applicability in the civil law or in the criminal law; it's uniquely related to impeachment.

MARTIN: Which means it's up for interpretation, which is what these legal scholars are going to be debating, I imagine, today.

BARON: That's true. Clearly, if a public - a federal public official commits a crime, bribery or murder or, you know, whatever, that can be the basis for removal. The interesting and more complex issue is when what has occurred is very wrongful and where it's unacceptable, but it doesn't meet the definition of any particular crime. It's now pretty well settled that you don't have to commit a crime, technically, in order to warrant impeachment being used.

In fact, two of the early impeachments did not involve criminal activity. One was a judge, frankly, who was insane. He would show up on the bench ranting, raving, and they had to get rid of him. And they found him guilty of high crimes and misdemeanors. But his crime - and I'm putting that in quotes...

MARTIN: Right.

BARON: Was that he had lost his mind.

MARTIN: And crime should be in quotes because we should just emphasize - what we're seeing now in the House of Representatives, the impeachment inquiry, this is not a criminal proceeding; this is a political proceeding.

BARON: That's very much - that's true. And I think it's important to recognize that even though it has some of the attributes of a legal proceeding, ultimately it is political. I mean, consider - the charges are brought by the House of Representatives. Last time I looked, they were all politicians. And the Senate decides the case - again, all political figures.

MARTIN: You have been involved in the impeachment of four federal judges, as we noted, dealing with the issue of bribery. I mean, you said that this is a crime that is explicitly defined in the code. Can you walk through the challenges of proving that?

BARON: Well, essentially, you want to show that some official act that was within the jurisdiction of the individual was committed or done because of some - I hate to use the phrase - quid pro quo. And in order - if you show that - and it was done with evil intent or wrongful intent. That's the essence of bribery.

MARTIN: But that's the hard part, right? How do you know someone's intent?

BARON: Well, you - we have to do that every day in the criminal courts of this country. You infer it from the facts.

MARTIN: Republicans, though, argue that President Trump was just pursuing general claims, allegations of corruption, that his intention was not to launch an investigation into Joe Biden; Joe Biden just happened to be wrapped up in that investigation.

BARON: Well, you have to look at all the facts and draw reasonable inferences from everything that's put before you. The Democrats see it as pretty clearly reflecting an interest in having Ukraine investigate Joe Biden and his son. The Republicans can argue to the contrary, and it will be up to the fact-finders, ultimately, to decide who's right and who's wrong.

What's interesting, also, is what is the burden of proof? How much proof do you need in order to make this out? In the civil case, it's a preponderance of the evidence - 51-49. In a criminal case, it's beyond a reasonable doubt. The Senate has looked into that issue, and they decided every senator has to decide for himself or herself which proof - burden of proof they want to apply. So there's no hard-and-fast standard.

MARTIN: What is the point of what we're seeing right now in the House Judiciary Committee? Are they really going to find anything different than what they found in the House Intelligence Committee?

BARON: Well, that's an interesting question because - certainly, today you're going to get legal analysis. Four legal scholars are going to debate what the meanings are of, you know, high crimes and misdemeanors and what history has shown. The real issue - and I'm not clear on this yet - is whether they are going to open up any new avenues or go back to the Mueller report and bring up some additional charges or claims that are not - have not been before Adam Schiff's committee.

MARTIN: Do you think that's dangerous...

BARON: No...

MARTIN: ...If you expand the scope?

BARON: ...It's just part of the process.

MARTIN: It just is - could potentially drag this on even further. Alan Baron, former special impeachment counsel to the House Judiciary Committee. We appreciate you giving your context and perspective on this. Thank you so much.

BARON: Sure. Thank you. Transcript provided by NPR, Copyright NPR.