Turley on Impeachment

His column for The Hill feels more like concern trolling than anything else.

Law professor Jonathan Turley, who has had in my view, a Susan Collins-level of being very, very concerned about how Donald Trump has been treated in the past has taken to The Hill to again express opposition to impeachment. The piece, which he posted to his personal web site, concludes as follows:

The damage caused by this week’s rioting was enormous — but it will pale in comparison to the damage from a new precedent of a “snap impeachment” for speech protected under the First Amendment. It is the very danger that the Framers sought to avoid in crafting the impeachment standard. In a process meant to require deliberative, not impulsive, judgments, the very reference to a “snap impeachment” is a contradiction in constitutional terms. In this new system, guilt is not to be doubted and innocence is not to be deliberated. It would do to the Constitution what the rioters did to the Capitol: Leave it in tatters.

This is, in a word, nonsense.

Acting quickly in the context of a political crisis is often necessary and I can think of no particular reason to wait to act.

The part that I find especially galling is the notion that trying to initiate some level of accountability is in any way analogous to the attack on the Capitol. Indeed, the comparison is pretty grotesque.

The piece itself utterly and totally applies the wrong standard to Trump’s behavior and to the mechanism of impeachment. He seeks to apply criminal prosecution standards as well as misapplying the First Amendment.

As is stated almost without fail every time someone talks about the impeachment process: it is a political and administrative process, not a legal one. While the US Constitution uses legal terminology (“high crimes and misdemeanors”) it is not describing a trial in a court of law. It is describing a process in a legislative body, ruled by the votes of elected representatives. Further, the penalties of being impeached are tantamount to being fired with the possibility of losing some retirement benefits. No one is going to jail and no one is paying any fine as a result of being impeached.

The fundamental reality is that an “impeachable offense” is defined as whatever a majority of the members of the House deems it to be. That they should show judgment and have cause is certainly true, but any assertion that it means anything other than what the House says it means is constitutionally incorrect.

Turley states “Congress historically has looked to the criminal code to weigh impeachment offenses.” Assuming that is true, I would note that the entire universe of impeachments in US history is twenty. This is not a large universe from which to make grand generalizations.

But, more importantly, if we must get historical for the moment, is the fact when the House impeached Andrew Johnson they impeached him first then wrote up the articles of impeachment after they voted. This does not strike me as looking “to the criminal code to weigh impeachment offense.”

Again, the House can consult the criminal code, or it can choose not to. Like the proverbial dude with a hammer who thinks every problem looks like a nail, Turley suffers from a lawyer’s myopia here that everything has to look like a criminal trial.

He couches his position in being a free speech advocate and talks about legal standards for incitement and sedition. All well and good, but we are not here talking about a criminal indictment and trial. We are talking about the political consequences of his political actions.

Let me get all Uncle Ben from Spider-Man and point out that with great power comes great responsibility. While a cliché is it is true and impeaching Trump is a mechanism for punishing him for his irresponsibility.

If Turley thinks that Trump didn’t use the right words needed for a conviction for incitement, I would likely agree. He used words like “peacefully” (for example) enough times to give him plausible deniability in a court of law.

But that does not absolved him, as President of the United States for things that he did say on January 6th, and leading up to that date. I detailed plenty of that in my post from Saturday, Trump Deserves to be Impeached, Plain and Simple.

His ability to speak like a mafia Don who knows how to communicate what he wants without directly implicating himself does not, nor should it, absolve him from what he did nor should it forestall impeachment.

Let me remind us all: the US Capitol was occupied by his supporters and he waited two hours to address the public, and even then he only did it via Twitter video. In that video he did not condemn the actions, but instead expressed love and sympathy for the rioters.

The Congress of the United States along with the Vice President were literally under attack and Trump said nothing for two hours.

His acts were clearly political and, therefore, there is nothing at all problematic about pursuing a political sanction, which is what impeachment is.

Further, since the main penalty at hand here is the denial of a chance to hold office again (as well as a loss of post-presidential perks) is a fitting punishment for his abuse of office. The notion that the actions have to rise to the level of criminal prosecution is absurd.

(For the record, I am not stating that he hasn’t done anything worthy of criminal prosecution. I just think that it is incorrect to try and tie criminal standards to impeachment in the way Turley is doing in his column).

FILED UNDER: Donald Trump, Impeachment, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Michael Reynolds says:

    Well-said. Turley is nothing but a camera slut.

    22
  2. owen says:

    Turley is quite partisan, which is sad for someone who claims to be objective. As sweet Lindsey reminded us during the Clinton Impeachment actions, it is not about criminality, it is about the restoring honor and integrity to the office.

    17
  3. Sleeping Dog says:

    Truley is someone I stopped reading long ago. Concern trolling is an apt description for how he proceeds. I saw this pop up on Memeorandum and rolled my eyes and moved on. @owen: is correct, impeaching Trump is not about criminality, but about setting bright red lines on what is accepted political behavior.

    9
  4. steve says:

    Unless McConnell is going to let this go forward and unless you are going to have Republicans actually vote for this not sure I see the point. You cant embarrass Trump. His supporters wont be persuaded. My guess is that McConnell delays so he avoids having his guys have a vote on the record.

    Steve

    2
  5. Sleeping Dog says:

    @steve:

    On the 20th McConnell is no longer a road block and regardless of what his desires are, if the HofR presents articles of impeachment he need hold a trial. Though he’ll be minority leader when the event actually occurs.

    2
  6. @steve:

    not sure I see the point

    I think that it is a signal to history and I think every member of Congress ought to be on the record as to his actions.

    TBH, I think losing his Twitter followers and the PGA tourny are hurting him more personally. But I think everything that can be done to show what he did was wrong ought to be done.

    And even if the Senate does not vote to remove his perks, the bottom line is this is the only constitutional censure that exists and he will go down in history as the only twice impeached president.

    10
  7. charon says:

    @Steven L. Taylor:

    Bret Stephens at NYT makes the obvious point that the only way the GOP can wash off Trump taint is by impeachment. The right thing to do is to give them the chance, even though they probably don’t take it.

    https://www.nytimes.com/2021/01/11/opinion/trump-republicans-impeachment.html

    Now they have a chance to make a break — not clean, but at least constructive — with the proven loser in the White House. Not many Republicans deserve this shot at redemption, but they still ought to take it. The G.O.P. came back after Watergate only after its party leaders — Howard Baker, George H.W. Bush, Barry Goldwater — broke unequivocally with Richard Nixon.

    You’ll hear Republicans like the House minority leader, Kevin McCarthy, talk about the need for healing. Fine. But this sort of healing first requires cauterizing the wound. It’s called impeachment. Republicans mustn’t shrink from it.

    11
  8. Modulo Myself says:

    Now they have a chance to make a break — not clean, but at least constructive — with the proven loser in the White House. Not many Republicans deserve this shot at redemption, but they still ought to take it. The G.O.P. came back after Watergate only after its party leaders — Howard Baker, George H.W. Bush, Barry Goldwater — broke unequivocally with Richard Nixon.

    Stephens may be the dumbest human being employed to write about politics. They don’t have a chance to make even a pretend break. Nixon won a landslide election and then was undone by his own crimes. Trump lost the popular vote both times. His party is fucking dogshit. There are no WASPs left, no leaders, no iconoclasts, no senile B-list actors, no legacies. They have absolutely no national future in this country.

    Two months into the Biden Administration and a Democrat-controlled Congress and the 95% of the Republican party is going to be losing its mind and declaring these riots an antifa-run attack orchestrated by the deep state to cover-up a fixed election. They have no other alternative left to them.

    6
  9. charon says:

    @Modulo Myself:

    There is a lot of anger at Trump now, after Jan. 6, more than ever. He can hold the extremist base, but there are squishier voters that will peel away.

    He is a spent force, and even two years is a long time, the way he is flipping out and deteriorating. He is cut off from his Twitter/Facebook oxygen, he is going to be busy with his legal issues, civil and criminal and tax.

    Sticking with Trump is suicidal in the long run, and even two years is the long run for Trump.

    1
  10. Teve says:

    @Michael Reynolds:

    camera slut.

    just became my new favorite phrase.

    3
  11. Gustopher says:

    @charon:

    Bret Stephens at NYT makes the obvious point that the only way the GOP can wash off Trump taint is by impeachment.

    I feel uncomfortable agreeing with the bedbug.

    6
  12. Ken_L says:

    “The president’s actions deserve criticism, but the Democrats’ response is totally unforgiveable” is a summary of just about everything Turley’s written over the last 4 years. To make semantic arguments about Trump’s words on January 6 without acknowledging the history and the context or the actions of Trump’s accomplices is an exercise in vacuity.

    4
  13. reid says:

    @Sleeping Dog: Same here. He’s a consummate partisan tool: find any angle to defend and excuse your guy. Trump would have to literally nuke a country before he turned on him, and even then I’m not sure.

  14. Jim Brown 32 says:

    @steve: The point (for me anyway) is to take away his pension and Secret Service protection for life. I dont even care if he doesnt need it.

    1
  15. charon says:

    @Jim Brown 32:

    He has a campaign organization set up for 2024. Take away his ability to run again you take away (or at least hinder) his ability to fund raise with his organization and “campaign” rallies. And you take away a lot of pretext for sounding off.

  16. @charon: That’s a really good point and I would reformulate it to: take away his right to run and you take away a clear avenue for him to grift followers out of cash.

    While it would not be impossible for him to find a way to still solicit contributions, if he isn’t able to run, it would really cut down on his ability to fundraise (which I expect him to do as a means of paying off debts and for non-campaign purposes).