The Case For Impeachment All Living Presidents

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Below is my column in The Hill Newspaper on the new standard on impeachment emerging from the House hearings. Democrats continue to state an insistence on a vote by Christmas — the shortest period of investigation of an impeachment in history. If impeachment is to be reduced to such an impulse buy item, there are many other choices for voters.

Here is the column:

Every year, shoppers wait for the next big thing in holiday gifts. The “must have” this year, at least for 43 percent of them, is the impeachment of President Trump. Like frenzied shoppers, Democrats are rushing to obtain impeachment before Christmas, despite pursuing an impeachment that seems designed to fail with an incomplete and conflicted record. It also is the narrowest impeachment in history that conspicuously omits thus far the crimes that Democratic leaders in Congress insisted for years would be proven by the Russia investigation but ultimately were not.

For an academic or legal commentator, it has become perilous to even raise obvious flaws in this impeachment from historical or constitutional perspectives. It is like trying to explain to panicked shoppers on Christmas Eve that the new “Tickle Me Elmo” is an overpriced and poorly designed toy. Whether it lasts does not matter. It is all about the sheer joy of opening and playing with it for a short time before it breaks.

It really does not matter that Democrats are moving forward with an undeveloped record. They have yet to subpoena John Bolton, the former national security adviser mentioned by every public witness. They have yet to subpoena Rudy Giuliani, Mike Mulvaney, Mike Pompeo, or others with potentially first hand knowledge of a quid pro quo. In the past, they simply dismissed the need for such key witnesses. They have also dismissed the problem of removing a sitting president on the basis of military aid being briefly withheld but eventually released. They have brushed off the fact that two of the three direct conversations with Trump contained express denials of a quid pro quo, including one in August, before the whistleblower complaint was sent to Congress. There may be an impeachable case to be made with Bolton, who teased about an undisclosed back story, but it will not be sustainable on this record.

More importantly, there is growing exasperation over any questions about the criminal allegations raised in the House Intelligence Committee hearings. Chairman Adam Schiff and House Speaker Nancy Pelosi have accused Trump of bribery, and Schiff repeatedly raised the elements of that crime in the hearings. Yet when some of us pointed out that his interpretation seems strikingly like the “boundless interpretation of the federal bribery statute” rejected unanimously by the Supreme Court in Robert McDonnell versus United States, he and others dismissed such legal definitions because “this is impeachment.” Why claim bribery at all if the definition and elements of that crime do not really matter?

Writing for the Washington Post this week, former prosecutor Randall Eliason has the answer. He argues that the actual elements of the crime are less important because “impeachable offenses are not governed by the strict terms” of the federal criminal code. Eliason has also argued that Trump saying he could pardon border agents for shooting undocumented immigrants could qualify as bribery. He said Donald Trump Jr. attending the 2016 meeting with Russians to hear alleged evidence of criminality by Hillary Clinton could constitute a vaguely defined conspiracy.

Apparently, the Clinton campaign hiring a former British spy to gather such information from Russian intelligence and other foreign sources was just politics. Now there seems to be a clear case for bribery, even if there is a problem on the elements or definition of that crime. Why? Because as Eliason concludes, the Constitution “specifically names bribery as a basis for impeachment” and that is “reason enough alone to choose that term” for the conduct of Trump. Why not call it “treason” as others have?

The fact is that past impeachments have always looked to the federal criminal code to judge the gravity of such criminal allegations. This is not bribery, but it sounds better than “quid pro quo” or some nebulous “abuse of power.” Opponents of Trump seek to use the term “bribery” precisely because it is a serious crime, but they do not want to deal with the actual legal definitions of that crime. In other words, stay away from my “Tickle Me Elmo.” It may not last long, but my kid thinks it is actually Elmo.

I have had enough. It is no fun to constantly state the obvious when no one wants to hear it. While I have objected to the conduct of Trump in Ukrainian matters as highly inappropriate, that is not enough when others demand impeachment as a way of upholding the ideals of the presidency and the aspirations of a nation. I have, therefore, decided to get into the holiday spirit and join the rush. For years, there has been an academic debate over the ability to retroactively impeach our officials. I do not think it is constitutional, but this is not the season for such technicalities.

President Obama made unjustified and extreme claims in withholding witnesses and documents when Congress investigated such matters as the “Fast and Furious” scandal. Democrats backed Obama but now claim Trump can be impeached for obstruction for going to court to challenge such demands. Seeking judicial review now appears to be impeachable, and there is a line of presidents who should have been removed for asking courts to resolve conflicts with the legislative branch.

Obama also pledged during his campaign to deal with the infamous CIA terrorist torture program but, soon after entering office, assured agency employees that no one would be prosecuted, a legal question that was supposed to be left to the Justice Department. The Obama administration then pressured other countries, with threatened loss of support, to drop investigations against those responsible for the torture program.

President Bush suspended military aid to 35 countries simultaneously to pressure them to guarantee United States immunity in potential cases at the International Criminal Court. He implemented a terrorist torture program and gave false information to Congress to justify a war that killed tens of thousands and cost hundreds of billions of dollars. He refused to comply with subpoenas from Congress and had the audacity to go to the courts, like Trump has been doing in the impeachment inquiry.

President Clinton committed perjury, as a federal court later found, but Democrats in Congress insisted that some “crimes do not raise to the level of impeachable offenses.” Now, however, even poorly defined noncrimes are fair game for the same Democrats who voted against the Clinton impeachment. Besides, Clinton committed a host of other violations like Trump, such as pardoning his half brother and a Democratic donor who was not only a fugitive but entirely unrepentant over his crimes.

Once we are untethered from constitutional language, there is no reason we cannot retroactively include posthumous impeachments. The range of such impeachable actions go back to George Washington, who refused material evidence to Congress on a costly failed military campaign and later refused to show Congress the Jay Treaty with Great Britain. While he eventually relented under pressure, he should have been impeached and removed within a few short weeks, or at least before Christmas.

Some of these retroactive impeachments might appeal to the 57 percent of Americans who do not support the current impeachment, including the 45 percent expressly opposed to it. So let us simply give everyone in the country a happy holiday and impeach them all. Anyway, who needs “Tickle Me Elmo” when you have the “Endlessly Impeachable Potus”?

Jonathan Turley (@JonathanTurley) is the chair of public interest law at George Washington University and served as the last lead counsel in a Senate impeachment trial in defense of Judge Thomas Porteous. He has testified with other constitutional experts in the Clinton impeachment.

108 thoughts on “The Case For Impeachment All Living Presidents”

  1. Jonathan: Christmas shopping metaphors aside you seem all lathered up by the refusal of Nancy Pelosi and Adam Schiff to adopt your narrow view that if “bribery” is to be included in articles of impeachment against Donald J. Trump it must be defined in accordance with the federal criminal code. “I have had enough” you complain. There was no criminal code when the founding fathers adopted “bribery” as one basis for impeaching the President. They knew bribery when they saw it. That’s good enough for me. There are a lot of legal “academics”, like you, who don’t share your constricted view of how the impeachment process works. Jerry Nadler, the Chair of the House Judiciary Committee, is holding a hearing on 12/4 to hear from legal experts on the impeachment process. Maybe you should get a slot on the witness list so you can express the minority view.

    1. Dennis McIntyre:
      “There was no criminal code when the founding fathers adopted “bribery” as one basis for impeaching the President. They knew bribery when they saw it. That’s good enough for me. There are a lot of legal “academics”, like you, who don’t share your constricted view of how the impeachment process works.”
      ************

      Common law bribery, as mentioned by the Founders in Art. II, Sec. 4 of the Constitution, was an established offense by at least the mid-1500s in England (Some historians have the offense originating in about 3000 BC. The Romans expressly codified it in Lex Baebia in 181 BC) and its elements were well known to the Founders, most of whom were lawyers. So it was hardly the mystical incantation you seem to think it was. I could bore you with the details but why try. Suffice to say “knowing it when they see it” is not a compelling legal standard of proof even then.

      It is said knowing nothing is preferable to knowing a little since ignorance is excusable but incompetence is not. You’re proof of that.

  2. no statute of limitations

    18 U.S. Code § 2381 – Treason

    Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

    Clinton should be prosecuted for selling top secret technical information to the Chinese

    While we are on the subject of high crimes and misdemeanors

  3. The GOP defense in essence, is that facts are irrelevant, no matter how damning or inconvenient, and that Trump has the power to do whatever he wants, even if it seems inappropriate, improper, or simply wrong.

    1. Fishy:

      “The GOP defense in essence, is that facts are irrelevant, no matter how damning or inconvenient, and that Trump has the power to do whatever he wants, even if it seems inappropriate, improper, or simply wrong.”

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

      No, the GOP’s defense is that you don’t get facts from unreliable evidence like triple hearsay, information not gleaned from personal knowledge and prejudiced testimony from axe-grinders.

      Keep trying. You’re at least mentioning facts instead of your chapped hind-parts as the basis for your opinions. I have great hope for you!

      Now back to some great music from “That Little Ol’ Band From Texas.” Uh Oww!

  4. Apparently the left are going to allow no choice and have quit. Ensuring they aren’t chosen as the greater or lesser of two evils

  5. You can run but you can’t hide
    Telling you all along that day
    You gonna run to the Lord
    Beggin’ to hide you
    You gonna run to Jah
    Beggin’ to hide you
    All, all along that day

    You gonna run to the sea
    But the sea will be boiling
    When you run to the sea

    You gonna run to the rocks
    The rocks will be melting
    When you run to the rocks

    Downpresser man
    Where you gonna run to
    All along that day

    And if you make your bed in hell
    I will be there
    Make your bed in hell
    I will be there
    I said, make your bed in hell
    I will be there

    by Peter Tosh

    Sinead O. takes you there

    And to think that firing neutrons into the nuclei of Uranium creates enough energy to fuse hydrogen into helium and a hell-fire—soon to consume the earth

    Where you gonna run to Down Pressor Man?

      1. don’t you be no batty boy, and don’t you be no fool

        The children of our Lord have a new insight
        And in this generation, the gospel is alive

        Make your bed in hell

        I said, make your bed in hell

        Can they imagine the darkness
        Begging GOD to kill them

  6. Professor Turley
    This is one of your best posts.in my opinion;however, I differ with you about President Trump being inappropriate. I believe he is more unconventional than inappropriate.

      1. David Benson is the God Emperor of Making Stuff Up and owes me thirty-eight citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after fifty-two weeks, and needs to cite all his work from now on. – tough talk from someone who cannot cite.

      2. David BB

        No one’s perfect. At least he has proposed tons of legislation that would make America great-er than it already is for high-income people, and he has made sure that our military is over-prepared for any opportunity to replace leaders around the world who won’t voluntarily hand over their natural resources to Rex Tillerson & Comp ny.
        All in all, don’t you think America would be wise to not lose such a rare, stable genius/family in 2020?

  7. They can try to stop, reframe, and investigate again but if they do, first, they will be even more of a laughing stock than they are now. Then, they are going to succeed in exciting the President’s base, not their own. After that, Democrats are already underwater with independents and especially independents in swing states. This double back and try again will likely do more damage to them than any good. Most people, even on the left that hate Trump, know damn well that this is all nonsense and pure hatred. They are seeing so much red they have ignored the fact that all of this starting with collusion and now into this Ukraine thing just keeps HELPING Russia. Democrats have become the ultimate never quit colluders, albeit, the useful idiots type.

    They should get this over with quickly because Trump is going nowhere. Just get back to making smart policy arguments for the 2020 election otherwise the Democratic party is going to be the third or fourth party in this country.

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