President Trump’s allies have used this to great effect. Back then, Rep. Jerrold Nadler (D-N.Y.) derided a “an impeachment substantially supported by one of our major political parties and largely opposed by the other” as “lack[ing] legitimacy.” That has been highlighted recently by Republicans such as House Minority Leader Kevin McCarthy (R-Calif.). After all, that phrasing could easily describe the impeachment of Trump — suggesting some amount of hypocrisy on Nadler’s part.
Kicking off the second day on which the House managers presented their case in the Senate impeachment trial, Nadler got a bit of revenge. Republicans have argued that Trump can’t be impeached without a crime. Repeatedly, Nadler used Republicans and Trump’s allies to argue that Trump could be.
One particular target of Nadler's rhetoric was law professor Jonathan Turley, selected by the Republican minority to argue against impeachment during a hearing before the House Judiciary Committee, which Nadler chairs.
Turley, Nadler said at one point, “agreed that the articles charged an offense that is impeachable.” Nadler quoted from Turley's written testimony: “The use of military aid for a quid pro quo to investigate one's political opponent, if proven, can be an impeachable offense."
Speaking a bit later, Nadler cited an article Turley wrote for The Washington Post in which the professor explicitly made the Democrats’ point: “The White House is arguing that you cannot impeach a president without a crime. It is a view that is at odds with history and the purpose of the Constitution.”
During the Judiciary hearing last month, Turley had agreed with another witness that abuse of power was an impeachable act. Nadler seized on it.
“He not only agreed,” Nadler said, “but he, quote, ‘stressed that it is possible to establish a case for impeachment based on a noncriminal allegation of abuse of power.’”
Nadler then went in for the kill.
“Professor Turley is hardly the only legal expert to take that view. Another who comes to mind in Professor Alan Dershowitz,” Nadler said — referring to a frequent Trump defender who is expected to speak on the president’s behalf at the trial.
“At least Alan Dershowitz in 1998,” Nadler continued. “Back then, here is what he had to say about impeachment for abuse of power.” Nadler played a video of Dershowitz.
“It certainly doesn’t have to be a crime,” Dershowitz said then. “If you have somebody who completely corrupts the office of president, and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.”
“We need not look to 1998 to find one of President Trump's key allies espousing this view,” Nadler continued after the video had played. “Consider the comments of our current Attorney General William Barr, a man known for his extraordinarily expansive view of executive power."
He pointed to comments Barr made in 2018 in which the now-attorney general explained that a president could not be indicted or investigated in part because he could be held to account through impeachment.
“In other words, Attorney General Barr who believes, along with the Office of Legal Counsel, that a president may not be indicted,” Nadler said, “believes that that’s okay, we don’t need that safeguard against a president who would commit abuses of power; it’s okay because he can be impeached. That’s the safeguard, for abuses of discretion and for his misdeeds in office.”
Barr is seen as a fervent defender of Trump’s, a view that derives in part from Barr’s assessment of the power of the presidency. Nadler then turned his attention to an ally of Trump’s whose support for the president is more obviously political: Sen. Lindsey O. Graham (R-S.C.).
During the 1999 Clinton trial, Graham had Nadler's position, serving as impeachment manager and making the House's case to the Senate. Nadler showed a clip of Graham's argumentation at that point.
“What’s a high crime?” Graham asked. “How about if an important person hurts somebody of low means? It’s not very scholarly, but I think it’s the truth. I think that’s what they meant by high crimes. Doesn’t have to be a crime. It’s just when you start using your office and you’re acting in a way that hurts people, you’ve committed a high crime.”
Graham wasn’t there for the video snippet. Sarah Ferris, a Politico reporter, said the senator had left the room a few minutes earlier — “[p]ossibly because each senator had a copy of Nadler’s PowerPoint, including pics of each slide in order.”
Seeing those sorts of contradictions from 20 years ago can certainly be uncomfortable, as Nadler can attest.