Hi, and welcome back to Trump Watch! It's impeachment-palooza in Washington, D.C., and Congress is celebrating with hearings in the coldest room on Capitol Hill. The witnesses may be feeling the heat, but I can confirm they can't feel their fingers. Send your layering tips to [email protected] and follow me on Twitter @jacq_thomsen for the latest news and complaints.

Harvard Law School professor Laurence Tribe and Joshua Matz of Kaplan Hecker & Fink.

The Legal Framework for Impeachment

As the House Judiciary Committee takes up the momentous task of drafting articles of impeachment against President Donald Trump, a book written by one of the committee's temporary hires offers clues about what allegations those articles could contain.

Joshua Matz, who is on leave from the boutique firm Kaplan Hecker & Fink as he works on the impeachment inquiry, co-authored a book with Harvard's Laurence Tribe in 2017 titled "To End a Presidency: The Power of Impeachment."

The book, written and published while special counsel Robert Mueller's probe was still ongoing, does acknowledge Trump's presidency and the calls to remove him from office. But it also warns against potential abuses of impeachment powers, and calls on Congress to weigh the consequences of either removing a sitting president, or allowing a potentially corrupt executive to remain in office.

It was likely that expertise that brought Matz to the committee earlier this year. That meant he, alongside other Democratic staffers for the committee, was in the room for the Judiciary Committee's first impeachment hearing Wednesday.

And when George Washington University law professor Jonathan Turley began saying the House should have gone to court to enforce congressional subpoenas for witness testimony—and that lawmakers could have gotten such an order by now—Matz began shaking his head in apparent disbelief.

The House has been locked in court battles with the Trump administration for months, and only recently secured a district court order for ex-White House counsel Don McGahn's testimony. Getting a final judgement that would fully secure witness testimony related to the Ukraine investigation was all but certain to not happen in the time frame Turley laid out.

At Wednesday's hearing, former Obama White House ethics counsel Norm Eisen laid the groundwork for three potential articles of impeachment against Trump. Those include abuse of power and bribery, obstruction of Congress and obstruction of justice.

Matz and Tribe's book was written long before Trump's alleged offenses at the heart of the impeachment inquiry—withholding military aid from Ukraine in exchange for politically-motivated investigations—took place. But it still touches upon the offenses that are now being considered for articles of impeachment.

For example, Matz and Tribe go back to the text of the U.S. Constitution to define the charge in the context of impeachment, rather than relying on the criminal code.

They wrote that "the Framers struck directly at the core evil: quid pro quo bargains. By writing bribery into the Impeachment Clause, they ensured that the nation could expel a leader who would sell out its interests to advance his own."

And the authors defined "impeachable bribery" as a "corrupt exercise of power in exchange for a personal benefit."

"The ultimate question is whether a president exchanged money or other favors with the intent of influencing some official action or inaction," the book reads.

The book does not offer a specific definition for abuse of power, although it repeatedly refers to it in the context of impeachment. In defining "high crimes and misdemeanors," Matz and Tribe write that "they involve corruption, betrayal, or an abuse of power that subverts core tenets of the US governmental system."

"They require proof of intention, evil deeds that risk grave injury to the nation," the book says. "Finally, they are so plainly wrong by current standards that no reasonable official could honestly profess surprise at being impeached."

The book also makes repeated references to the framers' concerns about foreign interference in U.S. elections, characterizing that fear as a driving factor for allowing impeachment.

"In creating the impeachment power, the Framers worried most of all about election fraud, bribery, traitorous acts, and foreign intrusion," Matz and Tribe wrote. "Willful conspiracy with a hostile foreign power to influence the outcome of a presidential election directly evokes all of these concerns."

In an epilogue published in 2018, Tribe and Matz touch more directly on potential acts of obstruction of justice by Trump, like the firing of FBI Director James Comey.

"While many facts critical to an assessment of Trump's conduct remain unknown, this highly irregular pattern of behavior cries out for congressional scrutiny," they wrote, ahead of the conclusion of Mueller's probe and the publication of his findings. "Regardless of whether Trump's conduct satisfies the elements of an obstruction charge under applicable provisions of the US Code, it might well justify impeachment hearings in the House."

Speaker Nancy Pelosi said Thursday that she was asking House Judiciary Committee Chairman Jerrold Nadler to begin drafting articles of impeachment. And shortly afterward, the Judiciary Committee announced a hearing next week where lawyers from that committee and the Intelligence Committee will lay out the evidence for impeachment.

That signals that allegations from the Mueller report, as well as the findings from the Ukraine investigation, are being considered for articles of impeachment.

The constitutional law scholars who testified Wednesday largely agreed that Trump's offenses had reached the bar for impeachment. To not impeach him, they warned, would do lasting damage to American democracy, potentially to the point of no return.

That's a message that Tribe and Matz also included in their book.

"Impeachment should occur when a president's prior misdeeds are so awful in their own right, and so disturbing a signal of future conduct, that allowing the president to remain in office poses a clear danger of grave harm to the constitutional order," they wrote. "When circumstances like these arise, failing to impeach can pose a threat even greater than the inherent risk of impeachment."

A Look Ahead

12/9: It's a double-banner news day in Washington, D.C. On Capitol Hill, counsels for the House Intelligence and Judiciary Committees will present evidence gathered in the impeachment inquiry into President Trump. And just blocks away, the U.S. Court of Appeals for the D.C. Circuit will hear arguments on whether more than 200 Democratic members of Congress can sue Trump for allegedly violating the Emoluments Clause.

12/11: In an under-the-radar suit against Trump, attorney Jeffrey Lovitky will argue to a panel at the U.S. Court of Appeals for the D.C. Circuit that they should resurrect his case against Trump, alleging the-then candidate filed deficient financial disclosure forms. A district court ruled last year that Lovitky didn't have standing to sue the president.

12/12: The U.S. Court of Appeals for the Fourth Circuit will hold a rare en banc rehearing of D.C. and Maryland's lawsuit against Trump for, you guessed it, violating the Emoluments Clause. Not in the mood to go to the courthouse in Richmond, Virginia? No worries, the court will be livestreaming audio from the arguments. You can find the link on its website, or hear CSPAN's livestream.

Impeachment witnesses (l to r): Noah Feldman, Pam Karlan, Michael Gerhardt and Jonathan Turley.

What We're Reading

>> Trump's Lawyers Make Their Case at SCOTUS to Keep Financial Records Secret: "In Trump's petition, his counsel William Consovoy, partner in Consovoy McCarthy, asked the justices to decide whether the House Committee has the constitutional and statutory authority to issue the subpoena. 'At its core, this controversy is about whether—and to what degree—Congress can exercise dominion and control over the Office of the President,' Consovoy wrote. 'It is unsurprising, then, that the one thing the district court, the panel, and the dissenting judges all agreed upon is this case raises important separation- of-powers issues. These are profoundly serious constitutional questions that the court should decide.'" [National Law Journal]

>> Battle Royale: Republicans, Legal Scholars Face Off Over Donald Trump's Impeachment: "Legal experts battled with Republicans over impeachment both on and off Capitol Hill on Wednesday, as the House Judiciary Committee heard testimony from constitutional law scholars on the legal grounds for impeaching President Donald Trump. Democrats on the committee tapped three scholars to testify about Trump's conduct: Harvard Law School's Noah Feldman, University of North Carolina School of Law's Michael Gerhardt and Stanford Law School's Pamela Karlan. In turn, Republicans brought in George Washington University Law School professor Jonathan Turley." [National Law Journal]

>> DOJ's Legal Counsel Office Picks Up Former US House Lawyer: "After three years as a top lawyer for the U.S. House of Representatives, Kristin Shapiro has jumped to an elite Justice Department team that has played a prominent role in clashes between Democratic lawmakers and the Trump administration. Shapiro, who joined the House general counsel's office under Republican leadership in 2016, had remained in the office for much of this year as Democrats seized on their newfound control of the chamber to investigate and, on several occasions, sue the Trump administration. Last month, she joined the Office of Legal Counsel as an attorney-adviser, landing in a Justice Department unit that grapples with some of the executive branch's most vexing questions of law." [National Law Journal]

>> 'An Existential Threat': House Report Berates Pat Cipollone's Legal Claims on Impeachment Inquiry: "In response to [White House counsel Pat] Cipollone's claims that Trump's top advisers are "absolutely immune" from having to testify before Congress, the House report points to court rulings striking down the concept. 'In ordering categorical defiance of House subpoenas, President Trump has confirmed the unlimited breadth of his position and his unprecedented view that no branch of government—even the House—is empowered to investigate whether he may have committed constitutional offenses,' the report reads." [National Law Journal]

>> Senate Confirms Another Kavanaugh Clerk the ABA Deemed 'Not Qualified' for the Bench: "Sarah Pitlyk will now be a judge for the U.S. District Court for the Eastern District of Missouri after the Senate confirmed her nomination 49-44 Wednesday. Liberal groups and lawmakers staunchly opposed her confirmation, pointing to Pitlyk's lack of experience in trial court and her work for anti-abortion activists. That lack of litigation experience was also the subject of the ABA's 'not qualified' rating." [National Law Journal]

>> Woman Who Alleged Affair With Trump Sues Fox News for Defamation: "The model, Karen McDougal, said Mr. Carlson had falsely accused her of extortion last year when he said that she 'approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn't give them money.' Ms. McDougal said in the lawsuit, which was filed in a New York State court, that she had never threatened Mr. Trump. She is seeking damages against Fox News for harming her reputation but does not name Mr. Carlson as a defendant. The network is responsible for his comments, she said, and his accusations were reckless and easy to verify as false." [The New York Times]

>> New lawsuit challenges Trump administration policy to collect foreigners' social media accounts: "Free-speech advocates are challenging the Trump administration's policy of requiring foreigners to list their social media accounts as part of their visa applications, alleging in a lawsuit filed Thursday that the policy violates federal law and runs afoul of the Constitution….'We believe it is both unconstitutional and illegal,' said Faiza Patel, a top lawyer at the Brennan Center for Justice. 'The very fact the U.S. government is collecting social media identifiers sends a message to the whole world that we are watching what you say online.'" [The Washington Post]

Thanks for reading. I will be back next with more Trump Watch.