My dear spouse occasionally forwards me the legal theories of Jonathan Turley, who currently argues Trump’s impeachment trial is unconstitutional now that Trump is a former official. Curious as to what Turley had to say about impeachment before Trump, I did some digging and struck a mother lode: Turley’s 146-page 1999 Duke Law Journal article, Senate Trials and Factional Disputes: Impeachment As A Madisonian Device. Turley’s reasons for publishing such a masterwork in 1999 may not have been dispassionate, since he had recently testified at Bill Clinton’s impeachment, but since Trump’s presidency wasn’t even a gleam in the old GOP elephant’s eye back then, Turley’s thoughts on impeachment in 1999 should at least be free of any bias for or against Trump. Those with the patience to read — or at least skim — Impeachment As A Madisonian Device will be rewarded with plenty of information on impeachment’s constitutional function and history that’s interesting in its own right, and a perspective in which the non-juridical, political nature of impeachment transcends mere raw exercise of power.

Impeachment As A Madisonian Device extensively surveys the constitutional history of impeachment. Its thesis is that the impeachment process, declared first in the House, then passed to the Senate for trial, culminates in

the quintessential Madisonian moment. It is the moment in which a pluralistic nation, fractured by division, is joined by a common faith. Far from a moment of weakness, it may be our strongest moment as a people.

Lofty words. Oddly enough, Madison himself had envisioned impeachment trials adjudicated by the Supreme Court, but Turley argued the Senate adjudication is even more Madisonian:

Articles I through III of the Constitution reflect the genius of the Madisonian democracy to direct unstable factional forces into the core of a deliberative process for resolution.

Impeachments, Turley observed in 1999, are crises of legitimacy most likely arising from unaddressed factional disputes (emphasis added):

In a Madisonian system, it is not factional or partisan disputes that are threats to stability, but unaddressed factional or partisan disputes… When viewed as part of the legislative system for resolving factional disputes, impeachment is given a contextual and procedural meaning. It is the most extreme and rarest form of political discord left for resolution in the legislative branch. As with legislation, the validity of the final decision of the Senate depends on an informed and deliberative process. When the threshold of “high crimes and misdemeanors” has been met in the House, the full presentation of evidence and debate in the Senate trial are essential to the retention of legitimacy not only by the officeholder but for the political process itself. It is the perceived legitimacy of the process, and not the outcome of that process, that maintains the faith of the governed and ultimately the authority of the government.

***

On impeaching officials now out of office, Impeachment As A Madisonian Device says of Nixon (emphasis and link added),

It appears to have been widely assumed after President Nixon’s resignation that his impeachment would no longer be appropriate. This assumption is misplaced… As has been shown, the Framers did not consider removal to be the sole purpose of impeachment, and they were familiar with the use of impeachment in cases of former officials such as Warren Hastings. The Senate had already established precedent for such cases in the trial of Secretary of War Belknap. As noted earlier, House managers (and apparently most of the senators) believed that conviction of a former official served an important deterrent effect, such that “other officials through all time might profit by his punishment.”…

A Nixon trial could have been advocated on the basis of a disqualification penalty. Admittedly, given the remote likelihood that Nixon would want or be able to secure a later office, disqualification would likely have served only as a symbolic rather than a substantive penalty for Nixon. However, impeachment trials seek to remedy political injuries rather than punish wrongdoers. Regardless of the practical impact on Nixon, the political value of the Senate trial for the country is, in such cases, the preeminent issue for Congress. A strong argument can be made for a need to address Nixon’s conduct in an open and deliberative process in the same way that Edmund Burke used the trial of Warren Hastings.

and of Belknap (emphasis added),

The most important aspect of the Belknap case was not his narrow escape but the trial itself. Members of both parties ultimately concluded that a trial of Belknap was needed as a corrective political measure. If impeachment was simply a matter of removal, the argument for jurisdiction in the Belknap case would be easily resolved against hearing the matter. The Senate majority, however, was correct in its view that impeachments historically had extended to former officials, such as Warren Hastings.

Impeachment, as demonstrated by Edmund Burke, serves a public value in addressing conduct at odds with core values in a society. At a time of lost confidence in the integrity of the government, the conduct of a former official can demand a political response. This response in the form of an impeachment may be more important than a legal response in the form of a prosecution. Regardless of the outcome, the Belknap trial addressed the underlying conduct and affirmed core principles at a time of diminishing faith in government. Absent such a trial, Belknap’s rush to resign would have succeeded in barring any corrective political action to counter the damage to the system caused by his conduct. Even if the only penalty is disqualification from future office, the open presentation of the evidence and witnesses represents the very element that was missing in colonial impeachments. Such a trial has a political value that runs vertically as a response to the public and horizontally as a deterrent to the executive branch.

Turley acknowledged Belknap was acquitted because there wasn’t unanimity on whether former officials could be impeached:

While many members argued that impeachment did not extend to former officers, the majority ruled by a vote of 37-29 that the Senate had jurisdiction in such a case… Ultimately, only two senators believed Belknap was innocent, but roughly two dozen had doubts about the jurisdictional decision. The final vote was 37-25 on the closest article.

Although Belknap’s acquittal appears to have depended more on doubts as to the appropriateness of his trial than on the judgment he was innocent, Belknap’s acquittal only softens the evidence of historic constitutional understanding presented by the Senate’s vote approving Belknap’s trial in the first place; it can’t erase it.

***

Apparently, Belknap’s lawyers took a tack similar to what some Republicans are trying today:

If Belknap could be impeached, they argued, so could any citizen.

That argument failed to gain credibility, as shown by the Senate vote — and by plain common sense: Impeaching a former government official for his conduct while he was an official is rather obviously different from impeaching citizens generally.

Turley is a lawyer, and, on matters where law is not wholly settled, lawyers enjoy the prerogative to argue either side of a matter as their interest of the moment dictates. The comprehensive theory of impeachment 1999’s Turley laid out in Impeachment As A Madisonian Device embraced the impeachment of former officials as legitimate, but of course residual doubts entitle 2021’s Turley to argue that it’s illegitimate instead, if he wishes.

2021’s Turley can also argue, as he does, that Democrats’ attempt to impeach Trump this time is really about curbing free speech, rather than ensuring incumbents accept authenticated election results. Still, if 1999’s Turley could smell what 2021’s is cooking, I doubt he’d eat it.

1999’s Turley emphasized that Madisonian deliberation in the Senate is not a juridical process, but a political one, ideally establishing mutual understanding on what counts as acceptable conduct among officeholders. The Framers put impeachment in the Constitution because “be as politically irresponsible as you like in office, as long as you, personally, can avoid criminal conviction” is no way to run a representative government. What’s free speech before the law can still be political abuse of office, so the free-speech-before-the-law defense is not especially helpful in establishing whether abuse of office happened.

***

Incumbents feeling free to bellow, “Come and see the fraud inherent in the system. Help! Help! I’m being repressed!” anytime elections don’t go their way don’t help a country hold secure elections, but rather the opposite. Our electoral system is far from perfect — I’ve done the kind of work to know. But it’s not so corrupt to make it plausible that Trump is the true winner of the 2020 presidential election, not after so many procedural and legal challenges have been exhausted without changing the result.

In order for elections to be worth holding, there must be agreed-upon authentication procedures for the results. (See Sowell’s Knowledge and Decisions on the importance of basing decisions on authentication processes rather than a presumption to cosmic knowledge.) Our system of laws and elections already has such procedures, and Trump’s campaign burned through them to no avail. Obviously, election authentication must strive for accuracy, and be improved wherever feasible, including through continuing investigation, but it must be abided by even if it’s not cosmically perfect (which it likely isn’t, since what human institution is?). We can’t afford to throw the authentication of an election away as “not authentic enough” on implausible scenarios that maybe this time the authentication process failed to produce the true, cosmic result, since it didn’t produce our desired result.

The more plausible scenario is that the apparent winner of the 2020 presidential election — Biden — is also the factual winner. Obnoxious as this result may be, and for all populist tastemakers’ performative complaints that we don’t have secure elections now, refusing to accept an election result after the usual authentication challenges have been exhausted seems likely to move us further away from secure elections. It’s all too easy to spuriously raise suspicions of election fraud anytime election results don’t go our way, a habit which, if unchecked, threatens election security all by itself.

***

As is often emphasized, impeachment is a political process. As Impeachment As A Madisonian Device emphasizes, impeachment is about political legitimacy, not criminal or civil legality. Are political leaders so reluctant to accept election results, that they won’t act to stop their most disruptive followers from carrying out foreseeable (for it was, in fact, foreseen) disruption of constitutional power transfer, legitimate political leaders in our constitutional republic? Or have such leaders forfeited their political legitimacy?

Should officeholders hide behind “But free speech!” when they abdicate their official responsibilities? POTUS has a unique responsibility to “faithfully execute the Office of President of the United States, and… preserve, protect and defend the Constitution of the United States.” (Presidential Oath of Office) Trump stoked false hope that, if he and his supporters were recalcitrant enough, they could apocalyptically manifest election results different from the apparent result — results revealing the esoteric will of “Real America” only. At first, there was some hope that this false hope might yet prove true, hence all the procedural and legal challenges, challenges available precisely so that significant irregularities in voting can be addressed, if they exist. But as time wore on, and avenues for legitimately changing 2020’s result were exhausted, what real hope remained?

Trump said,

I think one of our great achievements will be election security because nobody until I came along had any idea how corrupt our elections were, and again most people would stand there at 9 o’clock in the evening and say I want to thank you very much, and they go off to some other life, but I said something is wrong here, something is really wrong, can’t have happened and we fight, we fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country, and I say this despite all that has happened, the best is yet to come.

So we are going to–we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give–the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try–give our Republicans, the weak ones because the strong ones don’t need any of our help, we’re try–going to try and give them the kind of pride and boldness that they need to take back our country.

Assuming a “taking back” could have happened on Jan 6, what, really, could that “taking back” have been? What political legitimacy would it have had?

***

It doesn’t strike me as obviously wrong to hold an impeachment trial to address, among other things, the likelihood that the “taking back” attempted on Jan 6 is incompatible with relying on elections to, well, elect elected officials, and therefore politically illegitimate.

I don’t think it’s wrong for elected officials to hash out how far an elected official can go in refusing to accept election results before he’s rendered himself unfit for future office. I don’t think it’s wrong to expect incumbents, who already hold the power of office, to be more politically accountable for civil unrest among their supporters than non-incumbent candidates are. When your more disorderly supporters disrupt the execution of a constitutional transition, as the Jan 6 rioters did (and were predicted to do), what is your duty to your oath of office, as chief executive, to “preserve, protect and defend the Constitution of the United States”?

Turley’s 1999 vision of Senate Trials and Factional Disputes: Impeachment As A Madisonian Device would accommodate a Senate trial of Trump where such questions could be aired. As Turley wrote then (emphasis added),

The most dangerous impeachment crisis arises when one majority faction favors impeachment and a large minority faction opposes it. Partisan impeachments obviously increase the likelihood of the acquittal and retention of a President. The value of the Senate trial is at its apex in these partisan cases. By forcing the factional disputes into the open, the Senate trial creates a process of dialogue and redress. Otherwise, majority factional questions of legitimacy remain below the surface, unresolved and festering. Condemning partisan impeachments as facially abusive ignores the value of impeachment as a dynamic political process, as opposed to simply a method of removal.

***

Republicans’ best defense of Trump appears to involve keeping the Senate trial from becoming the Madisonian device Turley once described, so that “factional questions of legitimacy remain below the surface, unresolved and festering.”

Since all but five Republican senators have already voted for Rand Paul’s motion declaring this impeachment trial unconstitutional, Republican senators seem committed to a plan of stonewalling on the premise of unconstitutionality, rather than participating in “a process of dialogue and redress.” As Turley now advises,

A trial with an empty defense table would magnify the view of many that this is an improper or, at a minimum, unnecessary exercise.

If there’s little hope for this impeachment to serve as the Madisonian device Turley once lauded, perhaps that’s why Turley opposes this impeachment. But then we’re left asking, why can’t this impeachment function according to Turley’s Madisonian ideal, and who’s most motivated to ensure it won’t function that way? Turley’s advice is now that Republicans should do what’s in their power to prevent this impeachment from reaching the Madisonian ideal he once championed. How come?

In the unlikely event this impeachment did manage to serve as a Madisonian device resulting in Trump’s conviction, I could not rejoice, knowing how many good Americans would feel crushed by the verdict. Nonetheless, I find myself leadenly dreading the consequences of acquittal:

Trump is only one man, here then gone in a blink of history’s eye. The prospect of incumbents refusing to accept election results, on the other hand, poses a perennial threat to a republic like ours. At some point, it’s reasonable to consider opposition to accepting such results an impediment to holding further office. Where is that point? For many Americans, you’ve reached that point when your most excitable rallyers turn their protest on your behalf into a violent disruption of constitutional power transfer. If that point is not far enough, what would be?

********************************

Note: This piece began as a letter to my dear spouse, expanded with spousal input, and was written before I read the House Impeachment Brief. I wasn’t surprised to see the House Brief remark, “Even Professor Jonathan Turley (who seems to have changed his long-held views on the subject less than a month ago) previously argued that impeaching former presidents for abuses in office is authorized by the Constitution”, though the House Brief wasn’t what prompted me to seek out Turley’s pre-Trump opinions on impeachment.