Congress Calls Gerhardt to Testify as Impeachment Expert

May 22, 2020

When Carolina Law’s Michael Gerhardt testified with three other law professors before the House Judiciary Committee in President Donald Trump’s impeachment proceedings, the experience was both familiar and novel.

Familiar, because he testified (as a witness called by both sides) during President Bill Clinton’s impeachment proceedings in 1998. New, because the atmosphere at the Trump hearing in December 2019 was more intensely partisan.

Each time, Gerhardt, Burton Craige Distinguished Professor of Jurisprudence, was invited to appear before Congress because of his expertise as a leading law scholar whose research focus is constitutional conflicts between presidents and Congress.

“I was there to help educate the Judiciary Committee and anybody watching about the law of impeachment,” Gerhardt says. “The most immediate thing asked of witnesses was to apply the law to the facts.”

In applying constitutional law to the facts, Gerhardt said in his opening statement that President Trump committed the impeachable offenses of bribery, abuse of power and obstructing Congress and justice. He said the Constitution reinforces the principle that no one, including the president, is above the law and that, “If Congress fails to impeach here, then the impeachment process has lost all meaning, and, along with that, our Constitution’s carefully crafted safeguards against the establishment of a king on American soil.”

While Gerhardt’s testimony was thorough and polished, as it was the more than twenty times he has appeared before Congress, the Trump hearing generated different behavior in the members of the committee, as well as in the people watching and listening to the hearing.

“Whatever I do outside the classroom is meant to be helpful to students inside the classroom. It better informs my understanding of what I teach. I gain a much better sense of events and institutions from participating in real-world events.”
MICHAEL GERHARDT

“Though we all thought partisanship permeated the Clinton hearings, it was far worse in the Trump proceedings. Twenty years ago, everyone wanted to know the facts and the law, but in the Trump hearings his defenders simply attacked the messengers and largely ignored the law,” says Gerhardt, an impeachment analyst for CNN during both the Trump and Clinton impeachment inquiries. “The Internet was in its infancy in 1998, but in 2019 social media was omnipresent in the hearings. It completely reshaped everything that was happening.”

To prepare for the Trump proceeding, Gerhardt relied partly on his testimony and research for a House Judiciary Committee hearing in July 2019 on constitutional options to address presidential misconduct, at which he was a witness. That research included reviewing the Mueller Report and other public documents about President Trump’s conduct and additional information about presidential misconduct.

Gerhardt’s stellar research has been recognized beyond Congress. The Order of the Coif named Gerhardt its Distinguished Visitor for 2020, an honor given to just one law professor annually for outstanding scholarship. In 2015, he became the first legal scholar the Library of Congress asked to serve as the principal adviser in revising the official United States Constitution Annotated.

Testifying before Congress and pursuing scholarship enrich Gerhardt’s teaching, and he strikes a balance. “Whatever I do outside the classroom is meant to be helpful to students inside the classroom,” Gerhardt says. “It better informs my understanding of what I teach. I gain a much better sense of events and institutions from participating in real-world events.”

In his class on Congress and the president, he discussed his impressions of the Trump impeachment proceedings.

One takeaway “is the importance of preparation. Knowing the law and facts is crucial for a lawyer. Second, congressional hearings differ from judicial ones in many ways, and we go over these differences in class. Lawyers must perform differently in these different settings,” Gerhardt says. “A third factor is that the lawyering in constitutional crises has to be assessed both politically and legally. Arguments that are constitutionally sound may be politically ineffective, and arguments that are politically effective may be constitutionally weak or unsound may involve statements or actions in violation of ethical rules.”

How the president’s acquittal by Congress may affect future presidents isn’t known yet.

“Parts of our Constitution are being tested,” Gerhardt says. “These hearings showed the ineffectiveness of impeachment as a check on presidential misconduct. They showed that as long as a president’s party held almost entirely together in the House or Senate, it could prevent his ouster and tag the opposing side as the one being partisan.”

Whatever the outcomes, Gerhardt’s role in the impeachment inquiry was significant. “It was an honor being asked and gratifying being part of a very important conversation,” he says. “As law professors…it’s important for us to be able to share any expertise we have with our government,” our colleagues, our students, the nation, and future generations who study constitutional events like President Trump’s impeachment.

— Jessica Clarke