Below is my column in the Hill newspaper on what the Democrats would have to do to build an actual case for the removal of the American president. I have previously said that abuse of power is impeachable, but it is the most difficult of potential impeachment claims. Once again, impeachment does not require a criminal allegation but it does require clarity. It also requires a complete and compelling record. This record is neither complete nor compelling on proof of an impeachable offense.
Rather than continuing to criticize the record, below is an effort to lay out a possible case for impeachment.
Here is the column:
House Democrats have done a masterful job of holding hearings with testimony from distinguished diplomatic and national security witnesses on the alleged quid pro quo that President Trump sought from Ukraine. The problem is that the record is incomplete and conflicted on critical points. The question is whether Democrats want a real or a recreational impeachment. A real impeachment case can be made, but to make it, they will have to reschedule, reframe, and repeat their House investigation.
As compelling and upsetting as much of the testimony has been, the record still lacks direct evidence of a quid pro quo on American military aid to Ukraine. Out of all the House Intelligence Committee witnesses, European Union Ambassador Gordon Sondland was the only person to speak directly to President Trump on the issue, testifying that Trump denied any quid pro quo and that his own presumption of a quid pro quo was connected to a White House meeting with the Ukrainian president and not the aid. The transcript of the phone call between Trump and the Ukrainian president does not state a quid pro quo, and the only two other direct conversations on the record have Trump denying a quid pro quo.
While a September conversation between Trump and Sondland can be discounted as coming after the whistleblower complaint was sent to Congress, an August conversation with Senator Ron Johnson occurred before the submission. Johnson was upset with the delay in aid and, when he asked if there was a quid pro quo, he testified that the denial by Trump was “adamant, vehement, and angry” and contained “more than one expletive.” Those conflicts only highlight the still undeveloped record.
The hearings seemed to studiously avoid every witness with firsthand knowledge of the issue, including personal attorney Rudy Giuliani, former national security adviser John Bolton, Secretary of State Mike Pompeo, White House chief of staff Mick Mulvaney, and others. It was like hearing the play “Hamlet” entirely from the view of his friends Rosencrantz and Guildenstern. At some point, you really have to hear from the royal family.
If Democrats continue with their plan to impeach Trump by the end of December, they would be presenting the thinnest record and fastest impeachment investigation in history. Democrats assert that the record is more than 2,670 pages long. In comparison, the report by Kenneth Starr to Congress summarizing the evidence in the Clinton impeachment was 445 pages, with more than 8,000 pages of supporting documents just on the part dealing with the Monica Lewinsky allegations. The grand jury record and other documents from the investigation were even larger.
Basing an impeachment on such an undeveloped record would relieve senators of the need to seriously consider the underlying alleged acts. They could vote to acquit on the basis of an incomplete record. In other words, Democrats are not just making it easy on themselves but easy on their Republican counterparts by rushing a House vote. None of this means that a case cannot be made, but it has to be proven. You cannot blame partisan voting in the Senate if you submit a record that omits key witnesses while inviting conjecture over poorly defined criminal acts.
This of course assumes that Democrats seriously want to remove Trump from office. Instead, it all could be a failure by design in the hope of losing the case in the Senate in order to energize the Democratic base and win back control of the Senate next November, all while denying Republican voters a rallying point. Assuming that Democrats actually would like to remove Trump from office, how could the House prove such a case? The answer is those three simple steps of reschedule, reframe, and repeat.
First, the expedited vote by the end of December is simply absurd. It is not clear why Democrats have not even subpoenaed key witnesses or taken the time to force that testimony. After doing little on impeachment for more than two years, there is suddenly a blind rush to a vote while leaving a line of uncalled witnesses in the wake. While the House has spent some considerable time litigating over tax records, it has refused to go to court to enforce any witness subpoenas for the investigation. It easily could do so and ask for expedited review from the courts. If it had done this at the outset, we would have had the first round completed by now. It can still get through the trial court and the likely appellate court on an expedited path by next spring. However, Democrats have burned months without subpoenaing such testimony. They should do so without further delay.
Second, this investigation should have been left to the House Judiciary Committee from the outset. It should be transferred to that panel and the matter reframed to fit controlling legal interpretations and case law. The current bribery and obstruction claims are forced and unsupported. The Supreme Court unanimously rejected such broad interpretation of bribery in a prior case. Likewise, the obstruction allegation seems based on the exercise of the right of the administration to seek judicial review. After setting such a short period for its investigation, the House would impeach a president for seeking judicial review during that brief period. The missing witnesses may be able to establish the elements of these crimes, but they are missing from the abridged record. What remains is an abuse of power case requiring a broader evidentiary foundation to stick.
Finally, new testimonial hearings should be held, and uncalled witnesses should be subpoenaed. The House can then ask for expedited review from the courts. If Trump defies a final order, then that would be an undeniable impeachable offense. If witnesses such as Giuliani appear and invoke the Fifth Amendment right to refuse to testify, they can be given “use and derivative use” immunity to compel testimony. This form of immunity would not bar the use of the extensive evidence already gathered if they were later prosecuted. If they then refuse to testify or commit perjury, then they can be prosecuted. This could all be finished by next spring.
It remains to be seen if an actual case can be proven with these witnesses, but this would be an opportunity for a real case for removal in the Senate. However, they have a year to make that case. The view that it is untoward to impeach a president close to an election is simply absurd. The election has nothing to do with an impeachment. The election is about the next term. A legitimate impeachment can happen the day before an election. That is certainly better than leaving alleged impeachable acts without a constitutional remedy. So the choice rests with the House. It has made the case that impeachable offenses may exist. Now it has to prove them.
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.
Administration Consulted Gerrymandering Specialist Over Citizenship Question Then Withheld It From Discovery Process
Months after the end of the legal battle over the now-blocked citizenship question, the trail of emails and internal memos about the Trump administration’s push to include the question on the 2020 census is getting longer.
In addition to a lawsuit the House Oversight and Reform Committee filed Tuesday over redacted documents, two recent surprising turns of events have resurfaced questions about whether administration officials are holding on to potential evidence of the citizenship question’s true origins.
In a court filing released Monday, the Justice Department said that it recently realized 41 pages of emails and other documents from the files of a high-ranking Census Bureau official — Christa Jones — were “inadvertently” not shared with attorneys for the question’s challengers when the lawsuits were still active.
“The fact that these documents may not have been produced only came to light last week when the Department of Commerce reviewed its files in response to Congressional requests for documents,” DOJ attorney James Gilligan wrote in the filing.
The DOJ is “still investigating” whether any other documents were “similarly inadvertently omitted,” Gilligan added.
That revelation came almost two weeks after previously undisclosed emails from 2017 confirmed that a then-adviser to the administration, Mark Neuman, had direct communication with Thomas Hofeller, a prominent GOP redistricting strategist who had concluded adding a citizenship question to census forms would be “advantageous to Republicans and Non-Hispanic Whites.”
The emails were made public earlier this month by the House Oversight and Reform Committee, which had obtained them from Neuman as part of its ongoing congressional investigation into why the administration wanted the question. Neuman also turned over text messages he sent to Justice and Commerce officials.
Edited From: “Email Trail On Citizenship Question Is Longer Than Trump Officials Said”
Today’s NPR
REGARDING ABOVE..
Here’s the Key Passage Of The Article:
Mark Neuman, had direct communication with Thomas Hofeller, a prominent GOP redistricting strategist who had concluded adding a citizenship question to census forms would be “advantageous to Republicans and Non-Hispanic Whites.”
………………………….
Thomas Hofeller, referred to here as a “redistricting strategist”, was the master consultant Republicans used for gerrymandering schemes in multiple states.
The Trump Administration claimed that the Citizenship Question had nothing to do with disenfranchising Hispanics. But now we learn the idea came from Thomas Hofeller, which confirms exactly what cynics suspected since the Citizenship Question was first announced.
There is no ‘key passage’, Peter. It’s sound and fury.
Peter:
“Thomas Hofeller, referred to here as a “redistricting strategist”, was the master consultant Republicans used for gerrymandering schemes in multiple states.”
******************
I’d happily go back to a pre-Baker v. Carr community of interest approach to redistricting. But in our zeal to right every wrong we’ve eschewed common interest in favor of guaranteed representation based on race – a racist scheme if ever there was one.
House Democrats have done a masterful job of holding hearings with testimony from distinguished diplomatic and national security witnesses on the alleged quid pro quo that President Trump sought from Ukraine. Huh? That statement is about as accurate as the Chicago Bears have a great QB.
Did you watch what I was watching?
What I saw was one of the many reasons I voted for DJT. I saw pompous, arrogant and complacent wind bags who are supposed to represent everything great about our country and to carry out President Trump’s agenda. What I saw was personal agenda’s/ambitions who don’t like this president and one of them had the nerve to lecture the country saying Ukraine had nothing to do with spying on DJT.
And why is there an assumption that Rudy Giuliani, John Bolton, Mike Pompeo and Mick Mulvaney testifying will be the end of President Trump.
If I’ve heard it once I’ve heard it a 1000 times that the purpose of the State department, ambassadors are to maintain relationships not only political but military so that we can call them direct and avert an crisis yet, under our last miserable excuse for a president, Russia invaded Ukraine, annexed Crimea and shot down a commercial air liner. Let’s not forget about the Chinese, they built military bases in international waters in the S. China Sea. Our great intelligence department along with sources at State told us Iraq/Saddam had weapons of mass destruction….need I go on?
Tell me again why these peeps are so distinguished, so credible?
Nancy Pelosi announced she going to call a vote with no date announced, on USMCA trade agreement. She realizes there is no impeachable offense/crime and she’s loosing the house.
The democrats truly have no more moral compass and will do anything to over turn the 2016 election. They hate traditional America.
I say we call one witness, former NSA director Mike Rogers and start this Russia/Ukraine mess over the way it should be.
God help us!
Meanwhile, back at the ranch:
https://thehill.com/homenews/campaign/472225-buttigieg-campaign-returns-donations-from-kavanaughs-lawyers-report
There isn’t one of them that isn’t an utter humbug.
What is a sock rocket?
Prof Turley says
“t is not clear why Democrats have not even subpoenaed key witnesses or taken the time to force that testimony.”
au contraire mon frere! it’s plenty clear and it goes back to what Turley said months ago
the whole effort is FAKE. KAYFABE as they say in pro wrestling.
it’s a sop to the Democratic left wing fanatical base and the “Squad”
Pelosi, smart lady, just wanted to use this to hog headlines for a while! And shut down “the squad” from running its mouth overmuch. She’s very cunning.
One key issue for voters will be AUTHENTICITY. do you want a POTUS who for all his faults is authentic, who even when he fibs he’s transparently obvious in his goals and motivations, and in so doing is predictable and reliable as a champion of America,—
or do you want a bunch of snakes-in-the-grass who serve obscure agendas with all the cunning of serpents?
You’re proposing to compel testimony from his legal counsel?
If Trump defies a final order, then that would be an undeniable impeachable offense.
Now you tell us.
“For an academic or legal commentator, it has become perilous to even raise obvious flaws in this impeachment from historical or constitutional perspectives.”
-Jonathan Turley, November 25, 2019
On the other hand, it is de rigueur for academics and commentators to speculate as to how Trump could be impeached.
Simple suggestion – Rather than all this endless negativity, the Dems should spend a small fraction or their energy focusing on candidates and policies that would unite the country.
Decent article. Those who want to see how an impeachment investigation should be conducted need to read the late David Schippers’ book. Schippers was appointed by Henry Hyde, the chairman of the House Judiciary Committee, to conduct an investigation of President Clinton. By the way, Schippers was a prominent lawyer, a DEMOCRAT, from Chicago! He concluded that Clinton was guilty as hell on a number of fronts.
I am amazed at a real live lawyer, a member of the bar, adopting the position that a desire to impeach is grounds to search for a crime with which to do so. A person for whom the law matters would take the position that the evidence of a crime would have to come first, and that seeing the crime would create a desire to impeach. Put another way, if one is seeking a crime to use as a basis for impeachment, then clearly the desire to impeach is illegitimate.
Put another way, if one is seeking a crime to use as a basis for impeachment, then clearly the desire to impeach is illegitimate.
Good post Bill.
We should want the House to use their legislative powers to check the executive. But this House has decided they not only want to check this president, they want to obstruct him, use the weaponized bureaucracies to lay traps for him, undermine his constitutional authority, and conjure up ideas of impeachable offenses to influence the 2020 election.
True dat, Bill.
well said but it’s just like all the fishing expeditions that lead to process crimes
this is the American version of a Soviet show trial
except at the end the target may not get hanged
we’ll see how it all plays out
Excellent post. I don’t think the Democrats ever intended to turn this over to the Senate, or they just realized the implications for them if they do. This was “recreational” as the author says, to get headlines and make trouble. What a waste.
I have to laugh at Prof. JT for his totally inept assessment of the Impeachment and removal process. First he states that impeachment doesn’t require a criminal allegation, then he follows that with impeachment does require clarity! Then he tries to clarify what he means by clarity by stating that impeachment requires a complete and compelling record of proof of an impeachable offense.
I’m not sure where Prof. JT found these requirements for impeachment and removal, but I can State emphatically that it wasn’t Article 1 or 2 of the Constitution. In fact the way the clauses on Impeachment and removal were intentionally written as vague as possible to allow for impeachment and removal for absolutely no reason at all other than the States as the Union want the person out. And since there is no threshold for what constitutes an impeachable offense or a threshold for convention to remove, both are simply votes to reach a Majority Consensus threshold based upon the mode of assembly and Suffrage of the States in the House and the Senate, which are very low in the House requiring as few as 9 States to form a Majority Consensus, but intentionally Higher in the Senate requiring a 2/3 Majority Consensus of the States which is the same for all actions of the Confederacy as the Union dating back to the Articles of Confederation.
This is the balance that is struck that allows for cooler heads to act to put down political gamesmanship related to conflicts of interest related to Party affiliation and Partisanship. The States as the Union impeach, the States as the Union try and convict, and the States as the Union remove upon conviction. The difference is in the threshold for Majority Consensus for each of these actions.
Impeachment is a tool of the Union to compel the subordination of all Government Officials, up to and including the President, and if any Government Official even tries to usurp that authority or are insubordinate to that authority, then removal is the punishment for those acts of insubordination. What constitutes an act of insubordination? Anything in violation of authority and decision-making Powers and Authority of the States as the Union defined in Articles 1 and 2 of the Constitution, which Trump and Both Parties have totally obliterated, meaning the States as the Union are well within their Rights as Member States in the Union to impeach and remove every elected and appointed person within the Federal Government System, including everyone in Congress, the Executive, and the Judicial Departments of our Government.
Guess what else, there is no one, no Party, or even the Supreme Court that can STOP the States as the Union from any action the States do as the Union when they have a 2/3 consensus of the States or a 2/3 consensus of the State Legislatures.
Maybe instead of trying to wow us with your genius of the interpretation of principles of the Constitution, maybe you should try reading and applying the Constitution and it’s principles as written.
Uh, sorry professor, but they don’t get to impeach someone based merely of their intense dislike of that individual. Your first mistake and what ruins the rest of your piece is the premise that anything they are doing is reasonable, logical, sane, and in some cases, legal. It is not, and Nancy does not get to proclaim herself queen. The entire thing is absurd.
It has made the case that impeachable offenses may exist. Now it has to prove them.
That’s lawyer-speak for they feel the President must have done something worthy of impeachment, it’s just that they just lack the evidence proving what they feel. Of course elections and impeachments are different in many ways, but they have a similar purpose in one important way: to remove the current president from office. For 3 years, President Trump has been building an overwhelming case for reelection. And he has done this all while the Democrats have been in search of anything that would remove him from office before the election. One week from Monday, the IG report will be released. The American people will begin to learn exactly what efforts have been undertaken to prevent Trump’s election and then if that failed, to remove him from office.
This impeachment process? inquiry? whatever, reminds me of a scene from an old Gene Wilder movie Start The Revolution Without Me. Everyone in the Kings Court is involved in a coup. At a ball all the coup players are furiously passing secret notes to each other ordering each other to kill each other and the King as the coup plan changes every 2 minutes.
.
Elections have consequences.
Nullifying an election, stripping the Rights of American Citizens to Constitutionally elect the President of their choice, setting precedent to remove a President elected by the People anytime by fiat via unproven false accusations, gossip, hysteria, secret proceedings, hidden witnesses, nebulous charges, zero due process, zero proof, made up focus group tested crimes, national Goebbelesque brownshirting caliber Kristallnachting campaigns of violent hatred directed at him, the country and American Citizens who exercised their Constitutional Rights in defiance of the mission and because he is NOT the choice of a handful of agenda driven coup players can and will have even bigger consequences.
What in God’s Name do the Democrats think is going to happen when the next Democrat President comes to power? Speaking of which, given the increasing rumblings from Democrats and their propaganda ministry that the impeachment of Pence is imminent too, allegedly because he was “involved” in Trumps faux crimes, many people now believe the impeachment is looking less and less like an impeachment process and more and more like Nancy Pelosi self electing herself to the Presidency of the United States, thus completing the Democrats stated agenda of fundamentally transformationing The United States into a country in which the government never again has to serve by the “consent of the governed” and instead will permanently govern by the will of the state.
https://www.wsj.com/articles/why-are-college-students-so-afraid-of-me-11574812050
The Democratic Party is the electoral vehicle of the most loosely-wired people in America. Bit much to expect them to construct sensible arguments.
Yammer of the chattering class.
Nice road map on tactics to achieve impeachment.
But it misses the elephant in the room – motive.
This is not a situation where we have noble legislators seeking the removal of a corrupt president.
This is a corrupt bunch of partisan hacks seeking to overthrow a legitimate election that they lost. This is a coup.
Giving advice on how to launch a successful coup might appeal to Prof. Turley’s academic instincts, but recognize it for what it is – the attempted destruction of our democratic system.
Worse, after destroying our faith in the system, the coup will fail.
Hope that Turley et al are proud of themselves.
… after destroying our faith in the system…
“Better to take refuge in the LORD
than to put one’s trust in mortals.
Better to take refuge in the LORD
than to put one’s trust in princes.”
– Psalm 118:8-9
I see the implosion of our government, political and judicial systems as a win, win for many people returning to the Faith of our Fathers, a window of opportunity
Then again some dying patients refuse to part with their cigarettes
May God arise, may his enemies be scattered; may his foes flee before him.
As smoke is blown away by the wind, may you blow them away; as wax melts before the fire, may the wicked perish before God.
……..
Our God is a God who saves; from the Sovereign LORD comes escape from death.
Surely God will crush the heads of his enemies, the hairy crowns of those who go on in their sins.
The Lord says, “I will bring them from Bashan; I will bring them from the depths of the sea,that you may plunge your feet in the blood of your foes, while the tongues of your dogs have their share.”
from Psalms 68
I can’t wait for the House DemoKKKrats to supeona Rudy Giuliani…
I’m sure Rudy will bring along to those proceedings all the pertinent legal documents and sworn affidavits he received from the Ukraine Officials regarding the corruption of the past and still current American Officials
This pseudo case is like a
House built on sand.
It continues to sink.
According to AOC, this is an effort to unify the Democratic Party. However, it is putting some 30 Representatives at risk in the 2020 election. If the vote for impeachment, their jobs are really on the line. Trump’s popularity is going up. Independents are losing their taste for impeachment.
I have heard rumors now of Censure instead of impeachment.
According to AOC….
I suspect as a hawt Latina NYC Bartender in ruby red lipstick, she knew how to make a Mojito far better than concocting political strategy.
Rolling Stone is pleased to announce the rules for the… wait, which Democratic Party presidential debate is this? The fourth? Fifth? Fiftieth? Has the field grown or shrunk since last time? If I “strangle myself” like Jeffrey Epstein, will I still have to hear about it? Is there any way out, for any of us?
The 2020 Democratic presidential race is already a historic mess, with an overlarge field (former Massachusetts governor Deval Patrick recently became the race’s 28th entrant) and signs of extreme panic within the party at the prospects for the general election.
https://www.rollingstone.com/politics/politics-features/fifth-democratic-debate-drinking-game-rules-915404/
“The view that it is untoward to impeach a president close to an election is simply absurd. The election has nothing to do with an impeachment. The election is about the next term. A legitimate impeachment can happen the day before an election.”
**************
What about an impeachment in lieu of an election as is the case here? The case for impeachment is weaker than weak and your attempts to shore up the case make the case only for the sport of removing an elected leader by bureaucrats and paid-off politicos for policy reasons. It may be great fun for academics to muse about overturning the results of a democratic election but history shows the results for the populace aren’t quite so chuckley. As last nights rally in Sunrise, Florida amply shows, this President enjoys fervent support among the people in this country that make it work. Take him away and you may take them away or, in the worse possible result for the country, it may cause them to show up, en masse, at the Capitol’s door. I predict that they won’t be as sanguine as you about the theoretical machinations and virtues of impeachment. Sometimes flirting with revolution gets you a date.