By Ken Stone
At least 11 San Diego law professors have signed an open letter saying President Trump has engaged in impeachable conduct.
“We take no position on whether the president committed a crime,” says the letter, posted on Medium. “But conduct need not be criminal to be impeachable. The standard here is constitutional; it does not depend on what Congress has chosen to criminalize.”
(All told, San Diego’s three law schools list about 260 law professors or assistant professors, including 200 at USD School of Law, many of them part-time adjunct professors.)
Referring to Trump’s call for Ukraine to announce an investigation into Joe and Hunter Biden, withholding military aid as leverage, the 690-word letter says: “Whether President Trump’s conduct is classified as bribery, as a high crime or misdemeanor, or as both, it is clearly impeachable under our Constitution.”
As of 6 p.m. Dec. 12, 854 law professors or scholars nationwide had signed the letter declaring “overwhelming evidence made public to date forces us to conclude that President Trump engaged in impeachable conduct.”
The San Diego signatories are:
- Rick Barton, adjunct professor of law, University of San Diego School of Law.
- Timothy Casey, professor in residence, California Western School of Law
- Marjorie Cohn, professor emeritus at Thomas Jefferson School of Law
- Joy Delman, professor of law emerita, Thomas Jefferson School of Law
- Ilene Durst, visiting professor at California Western School of Law
- A. Thomas Golden, professor of law emeritus at Thomas Jefferson School of Law
- Julie Greenberg, professor emeritus at Thomas Jefferson School of Law
- Madeline Kass, professor emeritus at Thomas Jefferson School of Law
- Sandra Rierson, associate professor, Thomas Jefferson School of Law
- Steven Semeraro, professor of law at Thomas Jefferson School of Law
- And Bryan H. Wildenthal, professor of law emeritus, Thomas Jefferson School of Law
Wildenthal says the Ukraine revelations led to his stance.
“I was very skeptical about impeachment before then, both legally and politically,” he told Times of San Diego. “I have various political disagreements with the Trump administration, but I believe the Constitution sets a very high standard for impeachment. Normally the best and only recourse is to just wait for the next election.”
But he said the House hearings more than sufficiently documented Trump’s “outrageous perversion” of U.S. foreign and national security in a “brazen effort to seek personal political benefits.”
He added: “You could not write up a more classic textbook case of the kind of impeachable offense that George Washington would have considered a threat to the Republic. He was deeply concerned about corrupt foreign influence on American politics, and this president has repeatedly solicited such interference and influence.”
Wildenthal noted that, as the letter stipulates in a footnote, school affiliations are purely for informational purposes.
“Law schools, as nonprofits, do not take positions on such political or legal matters,” said Wildenthal, whose writings have been cited several times by the U.S. Supreme Court. “My views are purely my own as an individual legal scholar.”
He had no strong view on how many articles of impeachment Congress should prepare, but “I believe the articles should focus on the corrupt solicitation of foreign interference in U.S. domestic politics. The conduct may or may not constitute a statutory criminal violation (possibly bribery) but in any event it easily meets the constitutional standard for impeachment, which is ultimately a political matter.”
Golden, who once was his school’s director of foreign study programs, said compelling evidence exists that Trump solicited a bribe from the Ukrainian president.
“He sought a thing of value (the announcement of an investigation into the Bidens and the 2016 election) in exchange for official acts (the release of military aid and a White House meeting),” he said. “The assertion that there was no ‘quo’ to complete a quid pro quo because the announcement sought was never made is absurd.”
The solicitation of a bribe came in the form of making the Ukraine “an offer they couldn’t refuse,” he said.
That the president wanted something not for the purpose of advancing U.S. interests but to undercut a political opponent for his own benefit was most concerning, he said, “because it nullifies the notion that we should just wait until the next election and let the people decide Trump’s fate.”
When the president’s offensive conduct involves using the power of his office to affect the next election’s outcome, “this is the very reason the Constitution permits impeachment and removal.”
“The obstruction of justice comes in the form of all that has been done by the president and others in the executive branch to bury evidence and refuse to comply with congressional subpoenas,” Golden said.
He said privileges exist against compelling testimony from certain witnesses as to certain information.
“But there is no recognized privilege against the production of any and all evidence by denying any obligation to testify or produce records,” Golden said. “This, like abusing power to affect an election, strikes at the very nature of our constitutional government’s system of checks and balances.”
Durst said she was notified of the letter by an acquaintance at another law school late last week — and expects other local law professors to sign on.
“I was convinced [Trump] was aware of Russian influence on the 2016 election,” she said. “The Ukraine revelations confirmed my belief.”
She fears no professional risk for adding her name to the list, saying her school has no rules against such public expression.
“Academic freedom protects my freedom of speech,” said Durst, who is on the permanent faculty at Thomas Jefferson but is a visiting professor at Cal Western this academic year.
Rierson, a Yale Law School grad who came to Thomas Jefferson in 2002, said the evidence presented by U.S. diplomats about efforts to solicit Ukraine aid regarding the 2020 presidential election “unequivocally demonstrated impeachable conduct by President Trump.”
But she also thought obstruction of justice cases linked to Trump in the Robert Mueller investigation also constituted impeachable conduct.
Rierson, who joined the letter as an individual, said she didn’t consider it “risky” to sign it.
“Moreover, I think these issues are so important to the preservation of our democracy that individuals – most importantly politicians – should be willing to take on some measure of professional risk, if that is required to confront the truth and honor the integrity of the Constitution,” she said.
In October 2018, Casey, Durst and Golden were among 28 San Diego law professors — and more than 2,400 nationwide — to sign a letter calling on U.S. senators to turn thumbs down on Judge Brett Kavanaugh for the U.S. Supreme Court.
And in May, nine former San Diego federal prosecutors added their names to an open letter that said Trump would face “multiple felony charges for obstruction of justice” if he weren’t president.
“But for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report,” said a Department of Justice “alumni statement” with about 800 signatories.
House Speaker Nancy Pelosi said Thursday that articles of impeachment against Trump are pending. On Wednesday, four constitutional scholars testified before the House Judiciary Committee, with three law professors calling Trump’s behavior impeachable. One said the process was moving too quickly.
Updated at 5:57 p.m. Dec. 12, 2019.
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