Four academics appeared as witnesses before the House Judiciary Committee conducting its impeachment hearing, three called by Democrats and one by Republicans. The three prawfs, beyond offering their normative “man on the street” factual conclusion that Trump abused his office, agreed that his misconduct was exactly the sort for which impeachment was intended.
Noah Feldman, a professor at Harvard, argued that Mr. Trump’s decision to withhold a White House meeting and military assistance from Ukraine while he demanded political favors from its president was a classic impeachable abuse of power.
“The essential definition of high crimes and misdemeanors is the abuse of office,” he said. “The framers considered the office of the presidency to be a public trust.”
Unlike a certain other Harvard prawf, Feldman wasn’t part of the choir singing impeachment from the day after the election, but came to it after revelation of the MEMCOM of the July 25 telephone call with Ukranian President Volodymyr Zelensky. The other two, Standord’s Pam Karlan and UNC’s Michael Gerhardt agreed.
But then there was Jonathan Turley. It wasn’t that Turley was a fan of Trump. He didn’t vote for him. He’s been highly critical of him, particularly his rhetoric ranging from the inane to incomprehensible. And he was not arguing that Trump’s conduct wasn’t impeachment worthy. But that didn’t prevent Turley from offering a more critical view of the impeachment proceedings.
Turley offered two primary concerns about the impeachment process.
But Mr. Turley argued that Democrats were tarnishing the very concept of impeachment by sloppily applying what should be an ironclad set of standards. He said Democrats and the other witnesses were interpreting the concept of bribery too broadly to describe Mr. Trump’s conduct.
“This isn’t improvisational jazz — close enough is not good enough,” Mr. Turley said. “If you’re going to accuse a president of bribery, you need to make it stick, because you’re trying to remove a duly elected president of the United States.”
Essentially, Turley contended that the argument that Trump’s conduct constituted bribery, one of the two specific offenses (along with treason) set forth in Article II, Section 4, of the Constitution for impeachment, was being discussed as some vagary, a loose conceptual offense without elements or definitions. He compared it with the Supreme Court’s decision in McDonnell, which narrowed the definition of the “quo” for the “quid.”
While McDonnell was a statutory decision, rather than the common law definition of bribery as of 1789, Turley’s point was that there needs to be some elements, some definitions, rather than arguing whether something “feels” like bribery, whatever that may be.
Mr. Turley also disputed that Mr. Trump could be fairly charged with obstruction of Congress. Without going to court to ask a judge to enforce their subpoenas, he argued, Democrats had a case that lacked important validation and could even be an abuse of the House’s power.
Indeed, Turley asserted that if an Article of Impeachment charged Trump with obstruction for ordering Executive Branch officers to ignore House subpoenas, the abuse would be by the House, not the President. The argument was that the means by which the validity of the House subpoenas must be tested on the question of Executive Privilege is through the third, co-equal branch of government, the judiciary, before it can be deemed obstruction.
Granted, Trump’s refusal to cooperate was categorical, which Larry Tribe says has never happened before, but then the Supreme Court has consequently never held it to be improper.
.@JonathanTurley must know better. He’s deliberately equating impeaching to penalize seeking judicial review (clearly wrong) with impeaching for wholesale defiance of lawful subpoenas including those not under any court challenge. https://t.co/H0rR8LAeZg
— Laurence Tribe (@tribelaw) December 5, 2019
And if Tribe isn’t your cup of tea, then there’s always the “crushing” rationale from the legal scholar Judge Jeanine aspires to someday be.
Fox News' Judge Napolitano crushes Turley: "The House has sole power of impeachment. It does not need to go to a court… When the president receives a subpoena, Mick Mulvaney, Mike Pompeo receive a subpoena and they throw it in a drawer… that is the act of obstruction." pic.twitter.com/WjoKgkvImS
— Jesse Lee (@JesseCharlesLee) December 4, 2019
Whether either of these non-frivolous arguments should prevail is a fair question, and there are certainly counterarguments to be made. But what Turley did not do is argue that Trump shouldn’t be impeached or that his actions were proper. Unfortunately, one can’t do such a thing without courting outrage, and the forces of righteousness went after him.
.@maddow’s segment on Judge Porteous and his hapless defense counsel @JonathanTurley owed credit to @RepSwalwell, who nailed Turley on this saga — in which @RepAdamSchiff was the House manager in the Senate trial.
— Laurence Tribe (@tribelaw) December 5, 2019
Turley served as defense counsel at the 2010 impeachment trial of district judge Thomas Porteous, which was presented in a segment by Rachel Maddow to show his bias in his testimony before the Judiciary Committee. The Porteous case was ugly, as he was dirty beyond question, and Turley did what he could to zealously defend his client.
As there’s little doubt that Rachel understood the difference between a person serving as defense counsel and a person giving testimony as a legal scholar before a House committee, this was as disingenuous as it gets.
Regardless of whether Jonathan Turley’s views are meritorious, the fact that he was called as a witness by the Republicans, that his testimony did not fully support impeachment based on the extant record, that he questioned anything about the proceedings, he was immediately branded a Trump sycophant, Republican liar and, per Maddow, hypocrite. The message was overwhelming: say anything that doesn’t demand Trump’s immediate impeachment and you will be personally and professionally destroyed.
In this age of rage, many are appealing for us to simply put the law aside and “just do it” like this is some impulse-buy Nike sneaker. You can certainly do that. You can declare the definitions of crimes alleged are immaterial and this is an exercise of politics, not law. However, the legal definitions and standards that I have addressed in my testimony are the very thing dividing rage from reason.
As if this wasn’t outrageous enough, Turley reminds the committee of the enduring exchange in “A Man For All Seasons.”
Listening to these calls to dispense with such legal niceties, brings to mind a famous scene with Sir Thomas More in “A Man For All Seasons.” In a critical exchange, More is accused by his son-in-law William Roper of putting the law before morality and that More would “give the Devil the benefit of law!” When More asks if Roper would instead “cut a great road through the law to get after the Devil?,” Roper proudly declares “Yes, I’d cut down every law in England to do that!” More responds by saying “And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
While Tribe’s tribe will be thrilled to rip Turley to shreds for this sentiment, it would be nice of lawyers and legal academics, [ir]regardless* of whether they agree with him, to tell those who would destroy him for not hating Trump enough to support the right to speak, to question and to offer such “hate speech” as challenges their outrage.
*During his questioning of Turley, Ranking Member Doug Collins said “irregardless.” I couldn’t let it pass unmentioned.