The GW Commencement Controversy: A Response To Rep. Susan Wild

This weekend, I was unable to attend our law school graduation after traveling to Utah to speak to the Federal Bar Association. I have only missed a couple of graduations in almost 30 years of teaching. I soon, however, received emails from students and colleagues that made me somewhat thankful that I was unable to attend.

This year’s commencement speaker was Rep. Susan Wild (D) who represents the 7th District in Pennsylvania and is a distinguished graduate of our law school. Wild chose the commencement address to launch into a personal attack that accused me of being an example of the use of law for “wrongful ends.” She falsely accused me of changing a critical legal point in my testimony in the Clinton and Trump impeachment hearings on whether impeachable conduct must be indictable crimes. I felt that a response was warranted.

Rep. Wild surprised many in the political tenor of her remarks, despite her other positive and inspiring points. These commencements are celebrations for our community as a whole, including students and family members who hold opposing views. While a minority to be sure, George Washington does have Republican, libertarian, and conservative members as well as those who subscribe to pro-life positions. As someone who has spoken at such commencements, it is a time when most of us avoid political partisanship and focus on the accomplishments of the students and our shared values.

Rep. Wild had many of the traditional and inspiring elements of a commencement speech. However, she suddenly and surprisingly veered off with an attack on my character, academic integrity, and scholarship. She made no effort to reach out to me before the commencement and clearly made no effort to confirm the underlying allegation. Indeed, she had every reason to expect me to be there (as I often am) and to just sit silently as she attacked my character. If Rep. Wild believes that I have misused my academic position for “wrongful ends,” this was the wrongful means to raise such false allegations, particularly without a modicum of research.

Here is the passage:

“You must be wary of those seeking to use their influence and their expertise to wrongful ends. GW Law, for example, has a tenured professor who is without question well versed in constitutional law but has recently made a name for himself on cable news and social media by undermining his own past well documented scholarship. A law professor who at one time strenuously advocated that a president need not commit an indictable offense to be impeached and in just this past year argued the opposite for a president more to his liking. A president no less who instigated an insurrection and a bloody assault on our democratic process and the rule of law.”

While probably unsurprising for many in our age of rage, the use of a commencement to attack a faculty member was unprecedented at our graduation ceremonies. What was equally astonishing is that a member of Congress would use such an occasion to make a claim that is not only demonstrably untrue but easily confirmed as untrue.

I did indeed testify at both the impeachment of President Bill Clinton and the first impeachment of President Donald Trump. Remarkably, everything else that Rep Wild said in that statement was overtly false.

First, it is not true that my testimony was influenced by my preference of Trump over Clinton. To the contrary, in the Clinton hearing, I testified that I voted for Bill Clinton. In the Trump hearing, I testified that I voted against Donald Trump. None of that had bearing on my constitutional views, but the suggestion that I favored a president “more to [my] liking” is absurd. Indeed, in the Trump hearing, I criticized the call with Ukrainian President Volodymyr Zelenskyy and noted my disagreement with the positions of President Trump.

That brings us to the thrust of Rep. Wild’s accusation that I changed my position on whether impeachment articles must be based on indictable crimes.

I repeatedly stated in both the Clinton and Trump hearings the same position on indictable offenses. I expressly stated that impeachment articles do not have to be based on criminal or indictable acts. I have argued that past Congresses have often looked to the criminal code and cases as a measure of alleged impeachable offenses –  a practice that I support. However, I emphasized that indictable criminal acts are not required by the Constitution.

Since Rep. Wild focuses on how my Trump testimony changed on this issue, I will focus on the Trump hearing to keep this response reasonably short. I will note, however, that Bill Clinton was accused of a criminal act: perjury. Democrats agreed (as did a later federal judge) that Clinton knowingly committed perjury under oath, but Democratic witnesses like Professor Laurence Tribe insisted that impeachment was simply not that broad. I disagreed and still do.

In the Trump impeachment, I will note at the outset that not only did I repeat my position from the Clinton impeachment, but the House managers repeatedly relied on my position to support their articles of impeachment. Indeed, they cited that position in both impeachments, including featuring a statement in the second trial where I maintained that articles of impeachment do not require criminal or indictable acts.

In my written testimony, I repeatedly stated the exact opposite of what Rep. Wild claims. Here are a couple of examples:

“As I have stressed, it is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power. However, although criminality is not required in such a case, clarity is necessary”

“As discussed below, the strongest claim is for a non-criminal abuse of power if a quid pro quo can be established on the record.”

“While all three acts in the impeachment standard refer to criminal acts in modern parlance, it is clear that “high crimes and misdemeanors” can encompass non-criminal conduct. It is also true that Congress has always looked to the criminal code in the fashioning of articles of impeachment.”

I repeatedly made the same point in my oral testimony. For example:

“There’s a reason why every past impeachment has established crimes, and it’s obvious. It’s not that you can’t impeach on a noncrime, you can. In fact, noncrimes have been part of past impeachments, it’s just that they have never gone up alone or primarily as the basis for impeachment. That’s the problem here. If you prove a quid pro quo, you might have an impeachable offense. But to go up only on a noncriminal case would be the first time in history. So why is that the case?”

While emphasizing that past Congresses have relied on the criminal codes and cases as an objective measure of impeachment allegations, I repeatedly and unambiguously maintained that impeachment articles could be based on non-criminal claims.

I disagreed with my fellow witnesses in opposing the proposed articles of impeachments on bribery, extortion, campaign finance violations or obstruction of justice. I argued that these alleged impeachable acts were at odds with controlling definitions of those crimes and that Congress has historically looked to the criminal code and cases for guidance on such allegations.

The committee ultimately rejected articles based on those theories and adopted the only two articles that I noted could be legitimately advanced: abuse of power and obstruction of Congress. Chairman Jerrold Nadler even ended the hearing by quoting my position on abuse of power. The House managers also relied on my view that such a non-criminal article of impeachment was permissible under the Constitution.

Nevertheless, I opposed impeachment on this record as incomplete and insufficient for submission to the Senate. I argued for the House to wait and complete the record to support such claims. Ironically, this is the very issue with which I had a long disagreement (here and here and here and here) with Harvard Law Professor Alan Dershowitz and my opposing position was featured by the House managers in the second impeachment.

Over the decades, my views on constitutional interpretation have changed with a greater emphasis on textual authority. I am not alone in such natural evolution of views, even on impeachment. However, my views on impeachment have not changed significantly with the exception of retroactive trials. That was not an issue in the Clinton impeachment or prior presidential impeachments before Trump’s second impeachment.

It is, of course, ironic that Rep. Wild would instruct our graduating class on being righteous lawyers by making a demonstrably false allegation against one of their professors. Her attack on use of the law for “wrongful ends” is clearly based on her disagreement with my views. However, rather than simply disagree with those views in a respectful and factual way, she made false public allegations against my character and academic integrity.

I hope that Rep. Wild will now have the integrity to make an equally public apology for her false statements.

Here is the commencement address. The key passage is found around 1:05:

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