Prof. Jonathan Turley: “legal case for impeachment is not just woefully inadequate, but in some respects, dangerous”
The three law professors called by Democrats soiled themselves with hyper-partisan harangues, while Turley stood out as trying to put legal history ahead of current politics.
Today was perhaps the biggest farce yet in the impeachment saga. Two of the law professors called by the Democrats (Pamela Karlin and Noah Feldman) were so over-the-top partisan and political, that they buried whatever legal points they were making. The third law professor called by Democrats, Michael Gerhardt, was not much better.
There was little difference between their harangues and those of Adam Schiff and other Democrat politicians. They soiled themselves.
The standout was Professor Jonathan Turley. I don’t agree with everything he said, but there is little doubt he tried to put legal history before current politics. His opening statement was a truncated version of the 53-page statement he submitted:
Here are some key exerpts from Prof. Turley’s prepared written statement, which is scholarly and thorough:
…. one can oppose President Trump’s policies or actions but still conclude that the current legal case for impeachment is not just woefully inadequate, but in some respects, dangerous, as the basis for the impeachment of an American president. To put it simply, I hold no brief for President Trump. My personal and political views of President Trump, however, are irrelevant to my impeachment testimony, as they should be to your impeachment vote. Today, my only concern is the integrity and coherence of the constitutional standard and process of impeachment. President Trump will not be our last president and what we leave in the wake of this scandal will shape our democracy for generations to come. I am concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger. If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president.7 That does not bode well for future presidents who are working in a country often sharply and, at times, bitterly divided.
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In the end, I believe that this process has raised serious and legitimate issues for investigation. Indeed, I have previously stated that a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet moving forward primarily or exclusively with the Ukraine controversy on this record would be as precarious as it would premature.
* * *
As I have stressed, it is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power. However, although criminality is not required in such a case, clarity is necessary. That comes from a complete and comprehensive record that eliminates exculpatory motivations or explanations. The problem is that this is an exceptionally narrow impeachment resting on the thinnest possible evidentiary record…. Even under the most flexible English impeachment model, there remained an expectation that impeachments could not be based on presumption or speculation on key elements.
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In the current case, the record is facially insufficient. The problem is not simply that the record does not contain direct evidence of the President stating a quid pro quo, as Chairman Schiff has suggested. The problem is that the House has not bothered to subpoena the key witnesses who would have such direct knowledge. This alone sets a dangerous precedent. A House in the future could avoid countervailing evidence by simply relying on tailored records with testimony from people who offer damning presumptions or speculation. It is not enough to simply shrug and say this is “close enough for jazz” in an impeachment. The expectation, as shown by dozens of failed English impeachments, was that the lower house must offer a complete and compelling record. That is not to say that the final record must have a confession or incriminating statement from the accused. Rather, it was meant to be a complete record of the key witnesses that establishes the full range of material evidence. Only then could the body reach a conclusion on the true weight of the evidence—a conclusion that carries sufficient legitimacy with the public to justify the remedy of removal.
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A comparison of the current impeachment inquiry with the three prior presidential inquiries puts a few facts into sharp relief. First, this is a case without a clear criminal act and would be the first such case in history if the House proceeds without further evidence. In all three impeachment inquiries, the commission of criminal acts by Johnson, Nixon, and Clinton were clear and established….
Second, the abbreviated period of investigation into this controversy is both problematic and puzzling…. We have never seen a controversy arise for the first time and move to an impeachment in such a short period…. To be blunt, if the schedule is being accelerated by the approach of the Iowa caucuses, it would be both an artificial and inimical element to introduce into the process….
Finally, the difference in the record is striking…. The Ukrainian matter is largely built around a handful of witnesses and a schedule that reportedly set the matter for a vote within weeks of the underlying presidential act. Such a wafer-thin record only magnifies the problems already present in a narrowly constructed impeachment.
Turley also provided, as part of his legal point, this handy guide to Democrat demands for impeachment (it’s a dense paragraph, so I added some hard paragraph breaks for ease of reading):
These efforts reflect the long history of impeachment being used as a way to amplify political differences and grievances. Such legislative throat clearing has been stopped by the House by more circumspect members before articles were drafted or
This misuse of impeachment has been plain during the Trump Administration. Members have called for removal based on a myriad of objections against this President. Rep. Al Green (D-Texas) filed a resolution in the House of Representatives for impeachment after Trump called for players kneeling during the national anthem to be fired.20 Others called for impeachment over President Trump’s controversial statement on the Charlottesville protests.21 Rep. Steve Cohen’s (D-Tenn.) explained that “If the president can’t recognize the difference between these domestic terrorists and the people who oppose their anti-American attitudes, then he cannot defend us.”22
These calls have been joined by an array of legal experts who have insisted that clear criminal conduct by Trump, including treason, have been shown in the Russian investigation. Professor Lawrence Tribe argued that Trump’s pardoning of former Arizona sheriff Joe Arpaio is clearly impeachable and could even be overturned by the courts.23 Richard Painter, chief White House ethics lawyer for George W. Bush and a professor at the University of Minnesota Law School, declared that President Trump’s participation in fundraisers for Senators, a common practice of all presidents in election years, is impeachable. Painter insists that any such fundraising can constitute “felony bribery” since these senators will likely sit in judgment in any impeachment trial. Painter declared “This is a bribe. Any other American who offered cash to the jury before a trial would go to prison for felony bribery. But he can get away with it?”24
CNN Legal Analyst Jeff Toobin declared, on the air, that Trump could be impeached solely on the basis of a tweet in which Trump criticized then Attorney General Jeff Sessions for federal charges brought against two Republican congressman shortly before the mid-term elections.25 CNN Legal Analyst and former White House ethics attorney Norm Eisen claimed before the release of the Mueller report (which ultimately rejected any knowing collusion or conspiracy by Trump officials with Russian operatives) that the criminal case for collusion was “devastating” and that Trump is “colluding in plain sight.”26
More of Turley’s testimony:DONATE
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