Lindsey Graham's Trump Impeachment Resolution Has 'Absolutely No Substance' and Is a 'Legally Ignorant Red Herring,' Say Constitutional Scholars

Sen. Lindsey Graham's resolution to the Senate condemning the House impeachment inquiry into President Donald Trump has "absolutely no substance," said a constitutional scholar, and is full of "phony objections."

The resolution brought by the South Carolina Republican is co-signed at the time of writing by 46 of his party colleagues in the Senate. It accuses House Democrats of a lack of due process and transparency in their impeachment inquiry.

Among the resolution's complaints are that the House has not voted to open the impeachment inquiry, that witnesses so far have given closed-door testimonies, and that Trump is being denied his rights to defend himself against the allegations emerging from the process.

Trump's White House is refusing to engage with the impeachment inquiry because it argues the president is denied due process. It is not complying with congressional subpoenas and has instructed administration officials and those associated with Trump to do the same.

"Senator Graham's resolution has absolutely no substance," Laurence Tribe, Carl M. Loeb University Professor and professor of constitutional law at Harvard, and a prominent critic of Trump, told Newsweek.

"I looked at it carefully to see if any of its process complaints made sense historically, legally, or morally. I could find nothing in it worthy of being taken seriously.

"And the fact that it focuses entirely on phony objections to a completely fair and traditional process speaks volumes about how little the Republican senators have to say in defense of what the president has done in shaking down a vulnerable ally for his own personal benefit."

Harold Hongju Koh, Sterling Professor of International Law at Yale, told Newsweek that Graham's resolution is "a legally ignorant red herring."

"Even if this style of proceeding were not all authorized by the House rules the Republicans themselves adopted to run the Benghazi hearings, the due process protections Graham wants only attach at the Senate impeachment trial, not at the charging stage in the House, which more closely resembles a more private grand jury proceeding," Koh said.

"At the charging stage, private proceedings are warranted so that witnesses don't compare and align stories through public testimony (although the information that is emerging is remarkably consistent).

"And everyone knows that the information being gathered will be public in a matter of weeks anyway, when POTUS and his people will have ample opportunity to rebut."

Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri, told Newsweek the Republican complaints about the House impeachment inquiry are "without merit."

Bowman said it is not true that it isn't a valid impeachment inquiry without a resolution by the full House. He also said it is not true that the inquiry is being conducted in secret.

"As has been reported ad nauseum, the committees conducting the (currently) private depositions have over 40 Republican members, all of whom are entitled to be present and to ask questions," Bowman told Newsweek. "Likewise, all these committees have Republican staffs, who are also entitled to be present and assist Republican members in asking questions."

Moreover, Bowman said private evidence gathering is neither inherently unfair or contrary to precedent. Like Koh, he compared it to a grand jury proceeding.

"In the grand jury process, no one is present during witness testimony other than the jurors, the witness, the court reporter and the prosecutor," Bowman said.

"In short, Trump and the Repubs are asking for more procedural rights than a defendant facing lengthy incarceration would get. Here, advocates for the president—virtually every Republican member of these committees—are personally involved in the entire process."

At the heart of the impeachment inquiry, launched in September by House Speaker Nancy Pelosi, is the accusation that Trump abused his office by soliciting the interference to his advantage of a foreign government in the 2020 election.

During a July 25 phone call, Trump asked a favor of Ukraine's President Volodymyr Zelenksiy. He wanted Zelenskiy to open up two investigations.

One was into spurious corruption allegations against former Vice President Joe Biden—a leading candidate for the 2020 Democratic nomination—and his son Hunter Biden, who sat on the board of a Ukrainian gas company.

The other was into a widely-debunked conspiracy theory that the DNC conspired with the cybersecurity company CrowdStrike to frame Russia for election meddling, and that the evidence is held on a server in Ukraine.

There is also evidence that the White House used the offer of a visit for Zelenskiy and the withholding of military aid as leverage to secure the investigations and a public announcement of them by the Ukrainian president.

This week, Bill Taylor, the top U.S. diplomat to Ukraine, testified to Congress that he believed Trump was using the White House meeting and military aid to secure the investigations, which were to benefit him personally at the 2020 election. Trump denies any wrongdoing.

At a news conference on Thursday, Graham said the House inquiry was "out of bounds, inconsistent with due process as we know it, it's a star-chamber type inquiry, and is a substantial deviation from what the House has done in the past regarding impeachment of other presidents."

Graham highlighted differences with the impeachment of President Bill Clinton in which he, then a congressman, was a manager during the Senate trial.

"It's true that in the Clinton House impeachment inquiry, the president also had the right to have his lawyers present during any House-sponsored taking of evidence," the University of Missouri's Bowman told Newsweek.

"But critically, the House Judiciary Committee didn't actually take any new evidence.

"The entire proceeding was based on Ken Starr's report—400 pages plus thousands of supporting documents—which was the result of a criminal investigative process, including extensive use of the grand jury, in which the president had no right of participation at all."

Bowman said that the House Judiciary Committee during former President Richard Nixon's impeachment inquiry "did relatively little gathering of new evidence" and "worked off the special prosecutor's 'road map' and the secret grand jury material provided with it."

"Plus the work of the Senate Watergate Committee essentially complete before the house ever started. And even the House did private interviews of witnesses before putting them on in a public hearing," Bowman said.

"What's different today is that, because we have no prosecutor available to work up the Ukraine facts, the House has to do something it has not attempted to do since the impeachment of Andrew Johnson—which is to be the primary investigator of facts relevant to impeachment.

"To do that requires using the same techniques any criminal investigator would use—which includes taking the initial statements of witnesses out of the public eye."

Lindsey Graham Trump impeachment resolution Senate
Senate Judiciary Committee Chairman Lindsey Graham (R-SC), talks about the Clinton impeachment while introducing a resolution condemning the House Impeachment inquiry against President Donald Trump, at the U.S. Capitol on October 24, 2019 in Washington, DC. Mark Wilson/Getty Images

This article was updated with comments by Frank Bowman.

Lindsey Graham's Trump Impeachment Resolution Has 'Absolutely No Substance' and Is a 'Legally Ignorant Red Herring,' Say Constitutional Scholars | Politics