Professor Jonathan Turley has upset the progressives — so he must be silenced. As Ann Althouse blogged Friday morning, Turley was excoriated in the Washington Post and The Nation. The charge? That he is now saying (on behalf of Trump) the opposite of what he was saying in testimony regarding Obama and Clinton. But is this true?
Professor Turley says not. In the Obama testimony, he urged Congress — a matter of separation of powers — to challenge Obama’s unilateral acts that encroached on legislative powers, not to impeach him. In the Clinton testimony, he took the position that House could impeach for a non-criminal act (just as they are doing here). But Turley testified in the case of Trump that the record needs to be developed in greater depth and detail than the House Democrats have deigned to do.
In other words, you need to do the hard and time-consuming work of gathering public evidence that persuades the nation’s voters of the extraordinary need to remove a president. To be sure, Turley is making a procedural argument and not passing on the substance of the charges. In this, he is again distinguishing himself from the other law professors who were more than willing to assert the truth of the charges that the Democrats are making.
One of Ann’s observations is directly on point:
There should have been a witness who did take the position that the President can only be impeached for criminal acts. Turley took a middle position, and perhaps he demonstrates the dangers of moderation. He’s drawing distinctions that his antagonists can fail or decline to see.
From this post and prior posts, I don’t infer that Ann is taking a position that Trump (or any president) can only be impeached for a crime delineated in the nation’s criminal code. But she highlights how important it is for the standard to be clear and not subject to political passions of the moment. That is best decided by strong and clear positions staked out by the contending parties. If impeachment does not require a crime, how much less than a crime does it take? How do you determine what that is if no one even argues that there must be a crime? That, as I interpret Ann, was a fatal weakness of the “law professor” day in front of the House Judiciary Committee.
So let me make the argument for what should be impeachable that is not a violation of the criminal code: nothing. Conjure up some conduct by the president that is not criminal and ask yourself whether that is a justified basis for involuntary removal from office before the expiration of the constitutionally prescribed term. Forget “crazy,” that’s already covered by the 25th amendment. Also recall that even when a crime is made, e.g., perjury, that removal is not automatic and may be waived.
So what action is there, really, that justifies impeachment (as opposed to censure) that is not criminal? Getting an action overturned by the Supreme Court? Never happened even though presidents have both won and lost cases there. Failing to spend money appropriated? It has happened (called Impoundment) and no president was impeached over it for 172 years. (Congress passed a law in 1974 to specify certain procedures to be followed.) Failing to “faithfully execute the laws?” Recall Obama “prosecutorial discretion” rationale to grant protections to illegal aliens. No impeachment there.
To call impeachment a “political act” is to say nothing. Everything that Congress does is a political act by definition. To say that impeachment can be justified by political disagreement is to remove the electorate from the process. At least in a parliamentary system, a vote of “no confidence” triggers a national election, even if prematurely. I would rather the House vote no confidence and have a national election in February, than for them to do what they are doing. Let’s get real: the Democrats do not like our constitution unless it can be twisted into anything they want it to be.Published in