University of North Carolina Law Prof. Michael Gerhardt made a remarkable claim this week when asked about stories that Majority Leader Mitch McConnell (R, Ky.) was coordinating on the details of the Senate impeachment trial with the White House. Gerhardt claimed that such a thing has never happened in history. Despite my long association and friendship with Gerhardt, I must disagree with that remarkable suggestion.
Gerhardt and I testified at both the Clinton and Trump impeachment hearings. I have always valued his views and commentary.
In the Trump impeachment hearing, Gerhardt is probably best known for his sweeping declaration that “if what we are talking about is not impeachable, nothing is impeachable.” I will note that we were talking about a host of crimes from bribery to extortion to campaign finance violations to abuse of power. I testified that the legal definitions of the bribery, extortion, campaign finance and obstruction of justice (including Mueller-related claims) do not fit these facts and cannot be used as a basis for impeachment. The only two impeachable offenses that I saw as conceptually and constitutionally viable were abuse of power and obstruction of Congress but testified that the record would not currently support such claims. Ultimately, the Committee dropped all of those crimes and went with the two that I discussed. However, it has unwisely kept to its pledge to impeach by Christmas despite the obvious gaps and conflicts in the record.
Now to Gerhardt’s surprising claim. He was asked about reports on Thursday afternoon that Senate Majority Leader McConnell met at his office with White House counsel Pat Cipollone and others to talk about impeachment. McConnell acknowledged later that he was working on the details of the trial with the White House.
Gerhardt cried foul when asked by CNN’s Poppy Harlow “how normal or abnormal is it for the Senate Majority Leader to work in, what he said, was lockstep, essentially, with the White House on a senate trial. Is that normal?”
“It is extremely unusual. We don’t have a lot of experience with presidential impeachments, but this is the first time in history when the president was coordinating with a big bloc of people from his own party in the Senate. With Andrew Johnson, he wasn’t coordinating with anyone. No one liked Andrew Johnson. Bill Clinton was not coordinating with the Democrats. In fact, they kept a fair distance between themselves. Richard Nixon, his party was beginning to fragment at this point and, in fact, it was Barry Goldwater who said […] he’s not going to get through this without being convicted and removed. So, this is the first time we’ve seen this kind of coordination.”
With all due respect to my friend, that is wildly offbase from the history. First, in fairness to Gerhardt, little is really known of the backroom negotiations in the Johnson case. However, given the fact that he was widely despised even among his own party, it could well be true that he was not working closely with the Senate. However, the plain fact is that the Senate was overwhelmingly Republican and opposed to Johnson who was affiliated with the Democrats and later the National Union party. The very idea of the majority coordinating with Johnson on the trial would have been absurd given the open hatred for Johnson.
As for Nixon, both the House and the Senate were under the control of the Democrats, not the Republicans. Moreover, Goldwater was not the minority leader or minority whip. They were Hugh Scott and Robert Griffin, respectively. However, there was no trial being actively planned and Nixon resigned soon after the decision of the Supreme Court ordering him to release the key tapes.
As for Clinton, the Republicans controlled the Senate and the House. However, the notion that Harry Reid and Tom Daschle did not coordinate with the Clinton White House is . . . well . . . baffling. There were news reports of senators meeting with the White House on the details. Coordination between a president under impeachment and congressional leaders of his own party is not unprecedented. In the book “The Breach,” the author recounts close coordination between the Clinton staff and the Senate staff. Clinton also spoke directly with senators. Howard Kurtz for example reported on the views of a “Democratic senator who is consulting regularly with President Clinton” on the trial in his coverage for the Washington Post. On January 1, 1999, the Associated Press reports on the developments from meetings where “Senators and the White House are finalizing strategy for conducting President Clinton’s impeachment trial.” Some like Tom Daschle were actually uncomfortable with the degree of coordination and he resisted some of direct coordination but the White House was very clear about its demands. In one interview. Daschle agreed that “Clinton was leaning very heavily on [Sen. Ted] Kennedy, concerning a strategy: These are the 35 names, things he wanted, and a strategy he wanted to pursue. It’s my impression that he wasn’t consulting with the Democratic leader very much on these things.” While Daschle tried to maintain some distance, he admitted that he and Kennedy pursued the same approach on the details for the trial.
Since the opposing parties controlled the Senate in Clinton and Nixon, there would have been no shaping of the trial with the majority. However, it is very common for the party of an accused president to coordinate closely with the White House. That was done openly during Clinton and widely reported in the press as different options were raised with the White House by Democratic allies.
There is nothing unprecedented with conferring with the White House on the dimensions or demands of the trial. There should ideally be conferral with the House managers and party leaders are under a constitutional obligations to ensure a fair and legitimate process. However, conferral and coordination with inevitable and certainly not unprecedented.