Below is my column in The Hill newspaper on the recent controversy over President Donald Trump’s use of “lynching” and what it portends for any Senate impeachment trial.
Here is the column:
This week Americans saw a preview of the likely impeachment trial of President Trump. No, it was not the testimony of William Taylor, the acting United States ambassador to Ukraine, who certainly added damaging information on an alleged quid pro quo demanded by Trump. Rather, it was the kerfuffle over Trump using the word “lynching.”
Trump thought it was appropriate to compare the investigation of his alleged misconduct to lynchings, a word more often reserved for racist murders carried out in this country for decades. It was yet another Trump tweet that caused many of us to cringe over his language. Former Vice President Joe Biden expressed shock that Trump would use the term. Republicans and Democrats joined in objecting to his tweet.
Then the stories began to surface of some of the same politicians using the same word in the past, including Biden, who actually used it in the same context of impeachment. This is all a foreshadowing of what would come with the impeachment of Trump. The problem in Washington has never been a lack of corruption, just a lack of clarity. The public is in store for a drawn out process that takes the hypocrisy over this one word and multiplies it a thousandfold in a trial over self-dealing in office.
As I have said before, there is no question that the use of public office for personal gain is an impeachable offense, including the withholding of military aid in exchange for the investigation of a political opponent. You just have to prove it happened. If you can establish intent to use public office for personal gain, you have a viable impeachment offense. The problem then becomes not the charge but the members of jury.
The Senate may be the worst jury in world. As someone who has tried a case before that body, I would move to strike half of them for cause in a real courtroom. In that impeachment trial of a judge, I had jury figures like Republican Senator David Vitter, who had escaped criminal charges over his admitted use of prostitutes in Washington. Indeed, he sat there in judgment of a judge accused of improper conduct involving gambling and other acts, such as the payment of a stripper by a lawyer.
Trump would be judged on self-dealing by a jury that would include Democratic Senator Robert Menendez, charged with corruption for exchanging official acts for gifts from a wealthy doctor. All politicians are self-dealers who use their offices to advance their ambitions. It is in their blood. The fact is that “public service” often means “self-service” to those in political power. Watching a trial on self-dealing with this jury is like having Lori Loughlin and Felicity Huffman sit on a college admissions board. They certainly have experience, just not the right kind.
That is why the “lynching” controversy is so instructive. Biden expressed absolute revulsion with Trump using the term. “Impeachment is not lynching, it is part of our Constitution. Our country has a dark shameful history with lynching, and to even think about making this comparison is abhorrent. It is despicable.” He is certainly correct, but that is not what he believed when a Democratic president was being impeached.
During the impeachment of President Clinton, Biden declared, “History will question whether or not this was a partisan lynching or whether or not it was something that, in fact, met the standard.” To make matters worse, House Judiciary Committee Chairman Jerrold Nadler, Representative Gregory Meeks, and other Democrats also have used the term.
When confronted with his own use of the term, in the same context with the same underlying point, Biden insisted there was no comparison. Him using the “despicable” word was merely incautious, while Trump using it was “deliberative.” Biden apologized but added that Trump “chose his words deliberately today in his use of the word ‘lynching’ and continues to stoke racial divides in this country daily.” The same act is apparently a venial sin for a Democrat but a mortal sin for a Republican.
The same spin will be required in any trial, as shown by the business dealings of Hunter Biden. Joe Biden dismissed any controversy as entirely without merit, but the windfall payments to his son from a Ukrainian company will not be so easily set aside in a Senate trial. A respected ambassador said he was so concerned about those dealings with one of the most corrupt Ukrainian figures that he raised the matter with the staff of the vice president. He said he was shut down in his efforts.
The same is true of the outrage over seeking investigations or evidence from foreign governments. The Clinton campaign denied that it funded the dossier investigation of Trump until the media proved that it had lied. Former British spy Christopher Steele sought information from foreign sources, including Russian intelligence. The Obama administration investigated Trump campaign officials and sought information from foreign governments on alleged meddling in the 2016 election.
None of that excuses Trump if he demanded quid pro quo on Ukraine. The question is whether a compelling case can be made if Democrats have to excuse the actions of themselves. It will not be enough simply to claim their corrupt contracts or foreign inquiries were not as “deliberative” as those of Trump. If a case can be made against Trump, it will require a narrative that offers the public some clarity to distinguish the conduct of the defendant from those sitting in judgment in a Senate trial.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He also served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings. You can follow him on Twitter @JonathanTurley.