Constitutional experts clash in House Judiciary Committee hearing on impeachment

This is a rush transcript from "Special Report with Bret Baier," December 4, 2019. This copy may not be in its final form and may be updated.

BRET BAIER, ANCHOR: You heard at the end of that hearing Chairman Nadler reference Jonathan Turley, the Republican witness -- his comments in the Clinton impeachment in 1998. Often throughout this hearing you heard Republicans reference Chairman Nadler's comments in 1998, then-Congressman Nadler defending President Clinton, talking about the Clinton impeachment. We thought we'd play a clip of that.


REP. JERRY NADLER, D-N.Y.: There must never be a narrowly voted impeachment or an impeachment substantially supported by one of our major political parties and largely opposed by the other. Such an impeachment would lack legitimacy, would produce divisiveness and bitterness in our politics for years to come –


BAIER: A longer speech than that on that topic. Let's bring in our panel: Lanhee Chen, fellow at the Hoover Institution; Mollie Hemingway, senior editor at The Federalist; and Jonathan Swan, national political reporter for Axios. Okay, Mollie, your thoughts on the day? Again, eight hours, 25 minutes, of it.

MOLLIE HEMINGWAY, THE FEDERALIST: Well, I think it was a good reminder of what we'd already heard about Nancy Pelosi not wanting Jerry Nadler to have too much of a role in impeachment. For some reason, when he's handling public hearings they don't go well. We saw that quite dramatically with his handling of the Mueller hearings. And then you look at what happened today; the witness list was similarly sort of poorly chosen. You had three witnesses for Democrats, one who was an Elizabeth Warren donor who is so beset by hatred for Donald Trump that she says that she can't walk in the sidewalk in front of a Trump property. You had someone who said that you didn't actually need evidence of a crime for impeachment, which is technically true, but not the best talking point. You had a guy who was integral to the anti-Brett Kavanaugh smear operation when he was working Dianne Feinstein. These are not the type of witnesses that you select if you're trying to convince people that you are operating in a nonpartisan, even-handed manner, and as the day wore on, it looked like people saw how partisan they were.

BAIER: Both sides pointing to setting precedent with whatever action comes out of these impeachment hearings. Take a listen:


PROFESSOR MICHAEL GERHARDT: If there's no action, if we -- if Congress concludes they're going to give a pass to the president here, as Professor Karlan suggested earlier, every other president will say, “Okay, I can do the same thing.”

PROFESSOR JONATHAN TURLEY: I believe this impeachment not only fails to satisfy the standard of past impeachments but would create a dangerous precedent for future impeachments.


BAIER: Lanhee, I talked about this today, about whether the needle has moved, whether anyone changes -- the lawmakers currently set -- and it's all really about the math, let alone the House math, but then the Senate math in the end.

LANHEE CHEN, HOOVER INSTITUTE: There is nothing here that changed the minds of any legislator. There is nothing here that changed the minds of many voters. Right? I mean, we all know if you support President Trump, you're going to see these hearings one way; if you oppose him, you're going to see them in a very different light. And this really was, you know, billed as a scholarly examination of whether the president's alleged actions rose to the level of impeachment. It wasn't a scholarly examination at all. It was an expression of opinion, opinion of members of Congress, which, by the way, were not changed by anything we heard today, and opinions of people who came in with prior political views, as we've discussed.

BAIER: Is there something, Jonathan, that we're not seeing, some other thing that could happen along the way here that goes outside the script that we think is already written?

JONATHAN SWAN, AXIOS: You would need a new fact witness. Nothing can happen that is outside of new material facts that are damaging, that go well beyond what is there at the moment. Today's hearing meant nothing. There were no new fact witnesses; there was no new evidence that moved the ball. Republicans could pirouette and show off their knowledge of parliamentary procedure and rules to stymie the Democrats. You had three Democrat witnesses say that President Trump's behavior was egregious, clearly impeachable, you know, met the definition of bribery. You had a Republican witness who said that it would set a dangerous precedent and that it wouldn't, and here we are. At the end of the day, I agree with both of my colleagues here. We haven't changed anything.

BAIER: Yeah. So, one of the points --

SWAN: Though I will say one thing. I will say one thing. The one thing I did pick up today that was interesting is it seems to me that there is pressure building in the Democratic House to expand the articles of impeachment and include the Mueller obstruction of justice. And there are a lot of Democrats who don't want to do that in, and some of them are in leadership.

BAIER: Yes, because the bumper sticker gets a little bit longer to tell the American people what you're doing if you're explaining this, and that after Robert Mueller testified to all he testified up on Capitol Hill.

HEMINGWAY: Right. This is kind of becoming a worst-case political scenario for Democrats. They wanted to do this quickly, which is why they didn't fight for some fact witnesses that they maybe could have pursued through legal strategies.

BAIER: You're talking about John Bolton, Mick Mulvaney, others?

HEMINGWAY: Yeah. And here you have something that's not popular -- it's not becoming more popular; it's becoming less popular -- it's soul-crushingly boring, and you also have this situation where as it drags on there's less time spent on what Democrats, many of whom are moderates who are able to win Republican-controlled seats, are not doing any of the things that they were running on and promising to work on, whether it's health care or other issues, and it could be dragging on. They might not even vote on this before Christmas, which was what we were told they wanted to avoid. They wanted to get this done as quickly as possible.

BAIER: Well, that's what we're hearing, is that it may actually get delayed past Christmas. Now, the delay of the 10 days that they took after the House Intelligence Committee hearing seemed to move the needle in the polls that we looked at, especially in swing states, the other way, upside-down against impeachment and removal especially. Here is Jonathan Turley on the problem about fast and narrow impeachment.


TURLEY: Fast and narrow is not a good recipe for impeachment. Impeachments require a certain period of saturation and maturation. That is, the public has to catch up. I'm not prejudging what your record would show, but if you rush this impeachment, you're going to leave half the country behind, and certainly that's not what the president -- what the Framers wanted. You have to give it time to build a record. This isn't an impulse-buy item. You're trying to remove a duly elected president of the United States.


BAIER: So, the other three witnesses made, you know, impassioned pleas about the Constitution and about what they believe has happened, but one of the weakest points for Democrats is the timing, is it not?

CHEN: Yeah. I mean, look, this rush to judgment is problematic in part because it seems politically motivated. Now, the Democrats are actually in a really difficult position. They're kind of darned if they do and darned if they don't. Right? Because on the one hand, if this process extends, it starts to get into the campaign season; you've got a bunch of Democrats running for president in the Senate who have to come back, take time off the campaign trail. It bleeds into the fall campaign potentially. But then if they rush to judgment you are open to these discussions about whether, in fact, you are rushing things and they are going too quickly.

BAIER: Thirty-one Democrats in Trump districts are watching very closely.

Content and Programming Copyright 2019 Fox News Network, LLC. ALL RIGHTS RESERVED. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of Fox News Network, LLC. You may not alter or remove any trademark, copyright or other notice from copies of the content.