I have the distinction of serving at George Washington Law School with many accomplished academics, including Professor Alan Morrison who is one of the most respected legal figures in the country with extensive litigation and public interest experience. Professor Morrison has written the column below where he disagrees with my ultimate position in the impeachment hearing and I am delighted to offer this opposing view as a guest columnist on our site.

Turley is Right But Ultimately Wrong

By Alan Morrison, Guest Columnist

I had made up my mind not to watch the four witnesses testifying on the standards for impeachment, nor read their written statements. I had too much else to do, and I had concluded, based on the public hearings, that Donald Trump would be (properly) impeached by the House.  

But then I started getting emails from friends and others who simply wanted to convey their unhappiness at someone at George Washington Law School that they were very unhappy with what my colleague Jonathan Turley was saying.  Except for one old friend, who is a Trump supporter, who praised Turley.  It looked like a case of where you stood on Turley was where you stood on Trump.  Then I decided I had to see for myself whether Jonathan was as far off base as many suggested, and so I downloaded all 53 single space pages of his testimony. I conclude that he was right about much, but ultimately missed the dilemma in which the House was placed by the refusal of the President to produce documents and witnesses that would complete the investigation, until all litigation avenues were exhausted.

Although it may be lost in Jonathan’s disagreements with the House leadership, he agrees with their conclusion that an impeachable offense need not be a crime and that using the threat to withhold appropriated funds for personal political gain is the kind of abuse of political power that, if proven, would be a proper basis for the House to impeach the President.  Part of the reason why so many viewers seemed upset was that he spent 18 pages on a tour of history that in the end did not seem to inform his conclusions as to these proceedings and then 23 pages showing why what the President did is almost certainly not a crime under the current understanding of what the federal criminal code forbids.  But his bigger problems are that (1) he failed to understand that the withholding of nearly $400 million in military aid to Ukraine, even for a limited time, was plainly forbidden by the non-criminal law known as the Impoundment Control Act (“ICA”), and (2) the President’s insistence on litigating over every possible witness and document, plus his claim that Democrats are trying to use the impeachment process as a means to undermine 2020 the election, have forced them to choose between completing their investigation before voting on impeachment or not voting at all until it is too late.

            Turley downplays the significance of Trump’s holding up the aid to Ukraine on the ground that he finally released it before the end of the fiscal year and so it didn’t really matter at all.  There are two major flaws with this argument.  First, all of the evidence to date indicates that the President had no intention of releasing the funds and would not have done so if the whistleblower’s complaint had not surfaced.  Of course, that may be a mistaken conclusion, but only the President and his closest advisers could refute that view – and they are not talking.

            The ICA is also very clear that even temporary withholdings of funds are limited to certain circumstances, none of which apply here. Moreover, the law requires the President to notify Congress immediately of all delays in expending appropriated funds and give the actual reasons for doing so.  I assume that the President was not aware of the ICA, but surely the officials at OMB who work with it all the time were, which raises the question of what happened when the ICA’s requirements were raised with the director of OMB and the President.  Once again, those who know won’t or can’t talk, which makes the inference that this silence was a deliberate decision not to tell Congress that Ukraine was not getting its money the most reasonable one.

            Second, Turley’s position is not that the Democrats should abandon impeachment, but that they should gather more evidence to support what they have found so far before voting.  At one point he suggests issuing more subpoenas, but even the most routine ones – such as for the notes of conversations taken by witnesses who have testified in public hearings – have been refused, as have the many subpoenas for individuals to testify at non-public depositions.  Trump and his lawyers have not said that they would disobey court orders, but they insist that every dispute be decided by the Supreme Court.  Because of the large number of these disputes (unlike Nixon for whom the only real battle was over his tapes), and because the issues are complex and will affect future Presidents, Congress, and the American people, these cases will take time to resolve.  Even if the Court were to devote its full attention to these fights over access to records and people- which would be impossible to do given its full docket of other significant cases – we would be lucky to get final decisions by late June, just weeks before the major party conventions and the start of the fall elections.

            It is not, as Turley implies, that the House argues that the President does not have a right to litigate his claims of immunity and executive privilege. Rather, the argument is that he cannot also claim that the House is not basing its conclusions on the witnesses who are closest to the President and the documents that will prove or disprove his defenses, while stonewalling the efforts of the House to do just that.  To be sure, as Turley points out, the House is moving rapidly, but that is not because it has denied the President the opportunity to make his case, but because it sensibly wants to conclude these proceedings well before the 2020 elections.  And unless the President revokes his non-cooperation order, the House, and probably the Senate, will have little choice but to proceed on the basis of what proof they can obtain under these circumstances.  Mr. President, the next move is yours.

Alan Morrison is the Lerner Family Associate Dean for Public Interest and Public Service Law at George Washington University. The views expressed in this column are his own and not those of the Res Ipsa blog.