Professor Ken Hughes of University of Virginia recently penned a column to denounce the utter partisanship and lack of integrity in Washington as demonstrated by the failure of a single Republican to support the impeachment of President Donald Trump. He did not, of course, view the virtually unanimous vote by Democrats as partisan. Just the Republicans. The reason appears to be the view that the Democrats are right and therefore the Republicans are utter partisan hacks. To make his case, Professor Hughes makes equally selective observations about the history of impeachment, including singling out a line from my testimony before the House Judiciary Committee.
Hughes offers a comparison to the Nixon impeachment and says the partisanship is the same. He again only gives examples of Republican partisanship. He does not mention that the Democrats in the Clinton impeachment voted as a block in the Senate to not only block any witnesses but to have a summary vote without a full trial. Instead, he notes:
Much remains the same, especially the partisan attacks. In 1974, as today, Republicans complained that the impeachment inquiry was too secret, too leaky and a violation of presidential rights. Both Team Nixon and Team Trump called their respective inquiries a “witch hunt,” a “lynch mob” and a “kangaroo court.”
There is surprisingly little interest by Professor Hughes in the merits of the objection today, including the rushed impeachment, denial of a minority witness day, the blocking of all but one witness (me) demanded by the Republicans, the blocking of counsel, and other heavy-handed measures. I testified at both the Clinton and Trump impeachments and this process was far more restricted and frankly unfair to the minority.
Professor Hughes also decries that there were Republicans who supported the concept of impeaching Nixon for the defiance of impeachment subpoenas. Again, Hughes’ analysis is superficial and treats the two cases as effectively identical. The only material fact is that some Republicans supported such a claim during Nixon and all opposed it in the current controversy. Hughes is entirely uninterested as an academic if there is a basis for opposing one but not the other. I repeatedly addressed those distinctions in my testimony and other writings. It is akin to saying that a prosecutor supported a murder charge in one case but is a hypocrite for declining to charge in another case. You cannot consider any such comparison without addressing the underlying facts — not simply the charge and final vote.
As a threshold matter, it is important to note that while I opposed the four proposed articles on crimes like bribery (which the Committee ultimately also declined), I said that two articles would be legitimate. They were the two articles adopted by the Committee: abuse of power and obstruction of Congress. My disagreement on those articles was with the record not the grounds.
I stated in my testimony, there are major differences on the obstruction of Congress charge. The most obvious distinction is that Nixon (like Clinton) was able to take his case through the courts and secure a final ruling of the Supreme Court before an impeachment vote. Indeed, shortly after the Supreme Court decision, he resigned before he was impeached. Second, the Nixon impeachment effort was based on an investigation that stretched back years and was extensive with thousands of transcripts and documents, including grand jury proceedings. In the Trump impeachment, the House rushed through the investigation in arguably the short time of any presidential impeachment (depending on how you count the days in the Johnson impeachment). It is also the thinnest record ever submitted for a presidential impeachment. Finally, the position of the House is that, despite that abbreviated period, any effort to go to the courts rather than immediately yield to Congress is a high crime and misdemeanor. While I said that court orders or review are not required on such articles, it presents the weakest possible case for the Senate trial.
Professor Hughes does not consider any of those distinctions. Just the fact that obstruction was alleged in both cases and some Republicans supported the article in Nixon.
Professor Hughes does obliquely reference my argument but only to the extent that I argued that the constitutional principle that the House decides the evidence and witnesses required for an impeachment inquiry an “extreme position” He does not disclose that my point was based not on the underlying premise of the article (which I endorsed) or that I said that there is no requirement that Congress wait for a ruling. More importantly, he does not disclose that it was the short period of the investigation that troubled me in such a move in the Trump matter.
Where Hughes is correct is that I have always been a critic of the Nixon obstruction article because it (like the articles) were poorly drafted. As I stated in my testimony:
“While the Nixon impeachment had the most developed record and comprehensive investigation, I am not a fan of the structure used for the articles. The Committee evaded the need for specificity in alleging crimes like obstruction of justice while listing a variety of specific felonies after a catchall line declaring that “the means used to implement this course of conduct or plan included one or more of the following.” Given its gravity, impeachment should offer concrete and specific allegations in the actual articles. This is the case in most judicial impeachments.”
Moreover, the Nixon executive privilege claim did have merit and his request of judicial review was not frivolous. Again, as I stated in my testimony:
“I have always been critical of this article. Nixon certainly did obstruct the process in a myriad of ways, from witness tampering to other criminal acts. However, on the critical material sought by Congress, Nixon went to Court and ultimately lost in his effort to withhold the evidence. He had every right to do so. On July 25, 1974, the Court ruled in United States v. Nixon that the President had to turn over the evidence. On August 8, 1974, Nixon announced his intention to resign. Notably, in that decision, the Court recognized the existence of executive privilege—a protection that requires a balancing of the interests of the legislative and executive branches by the judicial branch.”
The Court ultimately recognized that such privilege does exist but then declared that it could not be used to bar the disclosures in that case. It was a major new ruling on the scope and meaning of the privilege. More importantly, Nixon made available a great deal of information and witnesses to the Congress.
Nevertheless, Hughes believes that any objection to the article constitutes “rewriting” history and partisanship. He notes that eight Republicans supported the Nixon article as proof that anyone opposing the article must now be a dishonest partisan.
It is troubling to see another academic stooping to such attacks, but as I have previously written, it is not unique. I have pointed out historical claims that my co-witnesses Noah Feldman and Michael Gerhardt, in my view, got wrong. However, I have always framed those disagreements as academic differences. I have never called them partisans or “comical.” In today’s age of rage, it is not enough to simply disagree and have an academic dialogue. You have to label your opponents as stooges or partisans — a tactic that allows you to avoid the merits of their arguments.
The best example is the only quoted line that Hughes offers from my testimony:
“According to Turley, the Supreme Court in United States v. Nixon told the president, “‘We’ve heard your arguments. We’ve heard Congress’ arguments. And you know what? You lose. Turn over the material to Congress.’ You know, what that did for the Judiciary Committee is, it gave this body legitimacy.”
There are three problems with Turley’s history: First, the Supreme Court did not hear Congress’ arguments, since Congress never took the matter to court. The case of U.S. v. Nixon was pressed by the Justice Department’s Watergate special prosecutor. Second, the court did not order Nixon to turn over his tapes to Congress, only to the special prosecutor; therefore, third, the decision could not add anything to the House Judiciary Committee’s legitimacy.”
He then added: “Turley’s is partisan history for partisan purposes. It enables one party to abandon principle and precedent while accusing the other of doing the same.”
Here is the problem. In each of these points, Hughes again ignores what I said and more importantly the relevant history.
Hughes makes the gotcha point that the case was actually litigated by the special prosecutor, not Congress. He ignores that I specifically discussed this distinction in my testimony. I noted that the position of Chairman Rodino was that the House would not go to court because any denial of a demand of any evidence was per se impeachable. I stated repeatedly that Rodino’s position was that the courts had no role in the matter and Congress alone would decide on the information to be given to the Committee. The quote referred to a broader point on how such rulings add legitimacy and strength to such articles. The quoted line was from an exchange with a member on why such orders added legitimacy to past impeachments like the Nixon impeachment inquiry. I referenced Congress not the Special Prosecutor in that exchange. We were going back and forth in the hearing in discussing the three presidential impeachment inquiries. Yes, the tapes went first to the Special Prosecutor and then the evidence was served with Congress. The point is that Nixon resigned after the tapes were compelled and the ruling supported the obstruction article. What Hughes does not mention is the long discussion of the Nixon case and the role of the special prosecutor. Instead, he prefers to suggest that I intentionally or comically misrepresented that case.
More importantly, he does not address the merits of the point: that such judicial review strengthens such cases for Congress. Instead his third historical point is tautological: “the decision could not add anything to the House Judiciary Committee’s legitimacy.” I am not sure what that means. My statement concerned given the Committee’s impeachment case legitimacy. That is obvious but, again, Professor Hughes prefers to adopt the most absurd possible meaning to suggest that I believed that a court opinion was needed to give Congress or a committee legitimacy.
Once again, I welcome the dialogue on the merits of impeachment. I have corresponded with various professors including co-witnesses from the hearing on such points. I have not hesitated to say when I thought that they were wrong. However, I have strived to be fair and I have never taken our academic disagreements to the type of persona ad hominem attack employed by Professor Hughes. As I wrote recently, I am not surprised by the low-grade name calling that characterize the public debate in this age of rage. However, the corruption of our academic discourse is disheartening.