The Washington Post has a controversial take on yesterday’s hearing in its coverage by Dana Milbank. The hearing raised the serious question of a pattern of allegedly unconstitutional actions by President Obama in either barring enforcement of federal law or directly violating those laws. However, the Washington Post only reported on the fact that impeachment was raised in the hearing in the discussion of the constitutional means left to Congress to address presidential abuse. Republicans object that the Post piece misses 99 percent of the hearing detailing the rise of an imperial presidency under Obama and four hours of discussion of the dangerous shift of power in the tripartite system. Impeachment or presidential abuse. It seems that two hearings occurred simultaneously. Both sides appear to be claiming the other is blinded by bias. The Milbank and Republican accounts appear a modern version of the parable of the elephant and the six blind men.
Now, I was the lead witness but I was testifying through the haze of a raging flu. So I went back and checked. Impeachment was mentioned in passing but it was quickly discounted. Indeed, I specifically testified that, as someone who testified at the Clinton impeachment, I did not view such a measure as warranted given the ambiguity of past decisions. Indeed, the references to impeachment were made in the context of the loss of meaningful options for Congress to respond to such encroachments when the President reserved the right to suspend portions of laws and fought access to the courts in challenging such decisions. Yet, the Post simply reported that the word impeachment came up (not surprisingly) in a discussion of the options given by Framers to Congress in dealing with unlawful presidential conduct.
During the hearing, not only did I discount impeachment as an option, but a Democratic member specifically asked the panel about the references to impeachment. No one could remember how it came up but it was clear that no one thought it was a substantial issue — or significant part of the hearing.
It is certainly true that House members have raised impeachment issues previously (just as some Democrats raised impeachment during the Bush Administration). However, it actually came up little in the hearing which was 99 percent focused on the separation of powers and the rise of an uber-presidency under Bush and Obama.
In a discussion of checks on the presidency, impeachment is one of the enumerated options given to Congress. Notably, past judicial opinions involving such separation of powers controversies have also discussed impeachment with the power of the purse as devices given to the Congress. In discussing impeachment with these other powers, courts were not advocating impeachment or suggesting that it was a viable solution in that given case.
I understand that Milbank tries to offer humorous takes on hearings and this is an editorial. I often enjoy his wit. However, it left a rather distortive impression of the hearing that tossed aside hours of substantive discussion of the real problem faced by Congress. Notably, Republicans at the hearing criticized both Bush and Obama for this trend, which I thought was noteworthy.
What was also curious was Milbank’s quote of my testimony. He stated “[t]he majority’s witnesses added to the accusations. George Washington University’s Jonathan Turley said Obama had ‘claimed the right of the king to essentially stand above the law.’” What is missing is that I was discussing the controversy involving James I and expressly said that I was not suggesting that Obama was acting as a King. Rather, I was discussing the so-called “royal prerogative” to stand above the law and how that general controversy motivated the Framers some 150 years later to include the “Take Care” clause. This was later referred to as a “dispensing power” in the context of presidential excesses. This was also part of my written testimony posted earlier. In fairness of Milbank, I was indeed arguing that President Obama had violated the Take Care Clause and was placing himself above the law in these instances. However, in the midst of the impeachment focus of the piece, it seemed to suggest that I was calling for impeachment.
But back to the main thrust of the hearing. The focus in the Post on impeachment (rather than alleged abuses by Obama) left the impression that Republicans are simply all about impeachment. Republicans often complain that it is the Post that is blinded by its own view of Republicans. It bring us to the ancient story of the six blind men and the elephant.
Once upon a time, there lived six blind men in a village. One day the villagers told them, “Hey, there is an elephant in the village today.” They had no idea what an elephant is. They decided, “Even though we would not be able to see it, let us go and feel it anyway.” All of them went where the elephant was. Everyone of them touched the elephant.
“Hey, the elephant is a pillar,” said the first man who touched his leg.
“Oh, no! it is like a rope,” said the second man who touched the tail.
“Oh, no! it is like a thick branch of a tree,” said the third man who touched the trunk of the elephant.
“It is like a big hand fan” said the fourth man who touched the ear of the elephant.
“It is like a huge wall,” said the fifth man who touched the belly of the elephant.
“It is like a solid pipe,” Said the sixth man who touched the tusk of the elephant.
They began to argue about the elephant and everyone of them insisted that he was right. It looked like they were getting agitated. A wise man was passing by and he saw this. He stopped and asked them, “What is the matter?” They said, “We cannot agree to what the elephant is like.” Each one of them told what he thought the elephant was like. The wise man calmly explained to them, “All of you are right. The reason every one of you is telling it differently because each one of you touched the different part of the elephant. So, actually the elephant has all those features what you all said.”
“Oh!” everyone said. There was no more fight. They felt happy that they were all right.
Obviously, the best way to appreciate the elephant is to see it as a whole.
You can watch for yourself and judge for yourself what the hearing was about in the Judiciary Committee.