I testified at Biden’s impeachment hearing, but then stood trial

When I was asked to testify yesterday at the first impeachment hearing against President Joe Biden, I had no illusions.

About 25 years ago, I testified at the Clinton impeachment hearing. Four years ago, I testified at Trump’s first impeachment hearing. Death threats and personal attacks followed.

As an example of how hope trumps experience, I reminded members of Congress this week that these are “constitutional moments that demand the best of each of us, transcending the passions and politics of the time.” I warned that this toxic environment begins with how members deal with this moment and “members can choose to be either strong teachers of civil discourse or political anger.”

One such member quickly rose to make his choice: Rep. Raja Krishnamoorthi (D-IL) chose anger.

In my testimony, I laid out the constitutional and historical basis for impeachment proceedings. Although I stated that I did not believe the current evidence would support an actual impeachment proceeding, I testified that the evidence clearly meets the threshold for an impeachment inquiry and that President Biden could be impeached if these allegations prove true.

I was immediately criticized by the likes of Steve Bannon, former Trump White House senior adviser, for withholding judgment on criminal conduct, and by Representative Krishnamoorthi for even suggesting that the House of Representatives should determine whether a such behavior occurs.

However, Krishnamoorthi did not question 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 2006 copy op ed In The guard and a comment USA today portraying myself as a supporter of Tom Green, a polygamist convicted of child rape.

It was untrue and I tried to answer but Krishnamoorthi refused. He then quickly left the hearing.

It took about 30 minutes before another member kindly allowed me to clarify the matter. Even though Krishnamoorthi and his colleagues weren’t interested in the truth, I felt the public deserved to know it. My three children sitting behind me definitely deserve to know.

Jim Bourg/Reuters

In 2006, I represented the Sister Wives family, first in a criminal polygamy investigation and then in a lawsuit challenging the underlying law. I have spent my entire career opposing “morality laws” that criminalize consensual relationships between adults. For decades I have opposed the criminalization of homosexuality and supported same-sex marriage. As someone with libertarian views, I object to society imposing moral codes on individuals. These laws 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 overturned on appeal on technical grounds.)

Furthermore, in the columns cited, I did not defend polygamy as a practice. In one I said: “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 objected to such moral laws that mandate private, consensual relationships between adults and conflict with similar relationships of merely adulterous couples.

It was strange that a liberal Democrat would attack me for such work, but Krishnamoorthi clearly knew all of this when he started waving around the “evidence” that I was a pedophile follower.

As I told the committee, the attack would not work. It would neither stop this investigation nor change the underlying constitutional standards. It would do nothing to protect the president from an investigation that the majority of the public supports.

However, it was a pivotal moment. This is a constitutional process that the public expects to be conducted with a minimum of solemnity and respect. It is a process that requires integrity, and yesterday the public was watching.

Former Senator Joe McCarthy (R-WI) used the same slander and bullying tactics. At the time, he was waving around lists of names of people who should be blacklisted and convicted because of their opposing views.

Alex Wong/Getty Images

I’ve written before that Democrats are increasingly using the tactics once used against the left during the campaign Red Scare, including the Using blacklists and personal attacks to silence critics. Journalists, FBI agents, Prosecutorsand whistleblowers were all victims of the same ad hominem attacks.

After a hearing in February 2023 where I testified about the government’s censorship efforts, MSNBC employees and former Senator Claire McCaskill (D-MO) condemned fellow witnesses Senator Chuck Grassley (R-IA), Senator Ron Johnson (R-WI) and former Representative Tulsi Gabbard (D-HI) as “Putin apologists.” (For the record, she also attacked me for not being a “real lawyer.”)

In one of the lowest moments, Rep. Susan Wild (D-PA) said—during her commencement speech at the law school where I teach—accused me of misconduct in a speech to the faculty and students. Their accusation was that I changed my position on the need for criminal conduct in Trump’s impeachment after I said that the House could impeach Clinton for non-criminal conduct.

It was demonstrably false. Not only me specify repeatedly In Trump’s impeachment trial, the House Democratic leader and managers relied on this statement in both the impeachment trial and the subsequent Senate trial. (Rep. Wild never apologized.)

Likewise, not a single Democratic member objected to Krishnamoorthi’s tactics or offered me the opportunity to correct the record. It wasn’t about whether it was true. It was another sad, sordid moment in our politics of personal destruction.

In my testimony, I told members that we should be able to discuss these issues without there being another race of slander and slander: “We can disagree, but we don’t have to hate each other.” MP Krishnamoorthi clearly wanted to win this race.

Judge Louis Brandeis once said, “Our government is the powerful, omnipresent teacher.” For better or worse, it teaches the whole people by example.”

The freedom some feel to engage in hateful rhetoric and personal attacks is a result of how members are handling this moment. We have become a nation addicted to anger, and members like Rep. Krishnamoorthi are only injecting more of that bitter bile into politics.

Again, it won’t work and the public is watching.