When I was called to testify at yesterday’s first hearing on the impeachment inquiry of President Joe Biden, I had no illusions.
Roughly 25 years ago, I testified at the hearing in the Clinton impeachment. Four years ago, I testified at the hearing in the first Trump impeachment. Each was followed by death threats and personal attacks.
In an example of hope over experience, I reminded the congressional members this week that these “are constitutional moments that demand the best from each of us in transcending the passions and politics of time.” I warned that this toxic environment begins with how members treat this moment and “members can choose to be either potent teachers for civil discourse or political rage.”
In my testimony, I laid out the constitutional and historical baseline for impeachment inquiries. While I stated that I do not believe that the current evidence would support an actual article of impeachment, I testified that the evidence clearly satisfied the threshold for an impeachment inquiry and, if these allegations are established, President Biden could be impeached.
I was immediately criticized by figures like former Trump White House senior adviser Steve Bannon for reserving judgment on any impeachable conduct, and by Rep. Krishnamoorthi for even suggesting that the House should determine if such conduct has occurred.
However, Krishnamoorthi did not challenge my analysis. He attacked me personally. In a truly bizarre moment, Krishnamoorthi denounced me as a defender of a criminal child molester and polygamist.
Krishnamoorthi waved around a copy of a 2006 op-ed in The Guardian and an op-ed in USA Today to paint me as a supporter of Tom Green, a polygamist who was convicted of child rape.
It was untrue and I attempted to respond, but Krishnamoorthi refused. He then quickly left the hearing.
It took me about 30 minutes for another member to kindly allow me to set the record straight. Even if Krishnamoorthi and his colleagues were not interested in the truth, I felt that the public deserved to know. Certainly my three children sitting behind me deserved to know.
In 2006, I was representing the “Sister Wives” family—first in a criminal investigation into polygamy and then in an action challenging the underlying statute. I have spent my entire career opposing “morality legislation” criminalizing consensual relations between adults. For decades, I opposed the criminalization of homosexuality and supported same-sex marriage. As someone with libertarian views, I oppose society mandating moral codes to be imposed on individuals. These laws have often targeted religious and social minorities, including members of the LGBT community.
We prevailed in the Sister Wives lawsuit and the law was found unconstitutional. (The decision was later set aside on appeal on technical grounds.)
Moreover, in the columns cited, I did not defend polygamy as a practice. In one I stated, "I detest polygamy." I condemned Green as “properly prosecuted for a child sex crime—just as a person in a monogamous marriage would be prosecuted.”
I was opposing such morality laws as dictating private consensual relations between adults and conflicting with similar relations by merely adulterous couples.
It was strange to have a liberal Democrat attack me for such work, but Krishnamoorthi clearly knew all of this when he started waving around the “evidence” that I was a pedophilic fellow traveler.
As I said to the Committee, the attack would not work. It would not stop this inquiry or change the underlying constitutional standards. It would not help shield the president from an investigation that the majority of the public supports.
However, it was a defining moment. This is a constitutional process that the public expects to be carried out with a modicum of solemnity and respect. It is a process that demands integrity and, yesterday, the public was watching.
Former Sen. Joe McCarthy (R-WI) used the same smears and bullying tactics. Back then, he was waving around lists of names of people who were to be blacklisted and condemned for holding opposing views.
I previously wrote how Democrats are increasingly adopting the tactics once used against the left during the Red Scare, including the use of blacklists and personal attacks to silence critics. Journalists, FBI agents, prosecutors, and whistleblowers have all been subject to these same ad hominem attacks.
After a hearing in Feb. 2023 where I testified on the government’s censorship efforts, MSNBC contributor and former Sen. Claire McCaskill (D-MO) denounced fellow witnesses Sen. Chuck Grassley (R-IA), Sen. Ron Johnson (R-WI), and former Rep. Tulsi Gabbard (D-HI) as “Putin apologists.” (For the record, she also attacked me as not being “a real lawyer.”)
In one of the lowest moments, Rep. Susan Wild (D-PA)—during her commencement speech at the law school at which I teach—accused me of wrongful conduct in an address to the faculty and students. Her allegation was that I changed my position on the necessity of criminal conduct in the Trump impeachment after saying that the House could impeach for non-criminal conduct in the Clinton impeachment.
It was demonstrably false. Not only did I repeatedly state in the Trump impeachment that the House could impeach for non-criminal conduct, the Democratic Chair and House managers relied on that testimony in both the impeachment and later Senate trial. (Rep. Wild never apologized.)
Likewise, not a single Democratic member objected to Krishnamoorthi’s tactics or offered me an opportunity to correct the record. The point was not whether it was true. It was one more sorry sordid moment in our politics of personal destruction.
In my testimony, I told members that we should be able to discuss these issues without another race to the bottom of slanders and smears: “We can disagree, but we need not hate each other.” Rep. Krishnamoorthi clearly wanted to win that race.
Justice Louis Brandeis once said that “Our government is the potent, the omnipresent teacher. For good or for ill it teaches the whole people by example.”
The license that some feel to engage in hateful rhetoric and personal attacks are the result of how members treat this moment. We have become a nation addicted to rage and members like Rep. Krishnamoorthi only inject more of that bitter bile into the body politic.
Again, it won’t work and the public is watching.