Below is my column in the Washington Post on the continuing controversy over the actions taken against impeachment witnesses by President Donald Trump. I recently explained that these actions are not, as claiming on CNN, clear criminal acts of witness retaliation. While I was critical of the moves, this column addresses why they are neither unlawful nor unprecedented.
Here is the column:
“Just because you’re paranoid doesn’t mean they aren’t after you.” Those words, from the fictional Capt. John Yossarian in Joseph Heller’s satiric novel “Catch-22,” could well have come from President Trump. Trump’s move against two impeachment witnesses (and a third man, the twin brother of one of the witnesses) has enraged and struck many as pure retaliation, and has led to calls for criminal and oversight investigations. Yet, while I believe that actions taken against Gordon Sondland, U.S. ambassador to the European Union, and National Security Council staffer Army Lt. Col. Alexander Vindman were wrong, they are both legal and not unprecedented.
Various experts, such as CNN legal analyst Elie Honig, have described the removals as “criminal” while Senate Minority Leader Charles E. Schumer (D-N.Y.) called on 74 inspectors general for “immediate action to investigate any and all instances of retaliation” against whistleblowers by the Trump administration.
The suggestion that the president’s actions are criminal is ironic on several levels. In 1867, Congress passed a law making retaliatory firings of public officials by a president a “high misdemeanor.” That law led the House to impeach President Andrew Johnson after he fired Edwin M. Stanton, the secretary of war. The case failed in the Senate, and the Supreme Court later noted that the Tenure of Office Act was facially unconstitutional. It would be equally unconstitutional to make the moving of Vindman back to the Pentagon or the termination of Sondland a crime. This post-trial action is not obstruction or witness tampering, and those officials are not guaranteed to retain such positions indefinitely.
What made these actions wrong, however, was that they appear as retaliatory as they were unnecessary. Both Vindman and Sondland were reportedly planning to leave their respective posts within a few weeks. Trump clearly wanted to fire them to send a message – a message visibly conveyed by the image of Vindman being unceremoniously escorted out of the White House. Moreover, the removal of Vindman’s twin brother (who never testified) smacks of medieval blood-revenge punishment.
The replacement of these officials however was neither unexpected nor unprecedented. Presidents have often distrusted officials from prior administrations, including civil servants. Thomas Jefferson referred to the administration of his predecessor as the “reign of the witches” and, accordingly, his removal of Federalist sympathizers could be viewed as the “witch hunt” in government.
Presidents have also canned officials for what they viewed as insubordination or opposition to their policies. Most famously, President Harry S. Truman fired the hugely popular Gen. Douglas MacArthur in the middle of the Korean War. President Barack Obama forced out Adm. Dennis Blair, then the director of national intelligence, after he opposed certain policies like drone strikes. Obama also sacked Gen. Stanley McChrystal after the then-commander of the International Security Assistance Force had been openly critical of the president in a Rolling Stone story. Trump fired national security adviser Michael Flynn when it was disclosed that he shared sensitive information without authorization.
White House officials and diplomats serve at the pleasure of the president and are thus the ultimate “at-will employees.” Presidents are generally allowed to pick their advisers and staff for good reason, bad reason or no reason at all.
While he could rest on his inherent authority, Trump could cite one obvious reason for his actions. Both of these officials were ordered not to appear as the White House litigated challenges to congressional demands. They disobeyed that presidential directive and testified without approval or White House counsel. Nevertheless, Trump waited to allow them to testify before taking any action.
The question is whether Trump is expected to continue to work with aides who not only refused to follow his directions but criticized his actions a threat to national security. Again, there is an echo of Andrew Johnson in all of this. Johnson was particularly paranoid about those out to get him. He once declared “I have been traduced. I have been slandered. I have been maligned . . . [and will not] “be bullied by enemies.” Johnson and Trump have a number of things in common. Both were hated by the opposition and known for highly inflammatory rhetoric, including claims that they fueled racial animosities. They also have one other shared element: they had good reason to be paranoid. Both presidents were being “traduced” (or maligned) by critics within their government, including active efforts to push them out of office.
While it is often overlooked, Trump has shown that key officials involved in the original Russian investigation opposed his election. More importantly, Trump was right about the Russian investigation. Not only was there no collusion between Moscow and his campaign, but the Foreign Intelligence Surveillance Court recently declared that two of the four warrants for secret surveillance under the Obama administration in 2016 were “not valid” because of a lack of probable cause and “material misstatements and omissions.” Likewise, a Justice Department official who handled the FISA applications was not only a fervent critic of Trump but allegedly falsified a critical document to secure the surveillance.
So, to use the words of Heller’s Capt. Yossarian, there really were people out to get the president. More importantly, the law does not require that Trump work with people who hold deep-seated opposition to his past judgment or actions – including testimony that he is a liar. That hardly bodes well for any working relationship. While one can debate whether it is a presidential or paranoiac impulse, it is neither unlawful nor exceptional from a legal or historical perspective.
Jonathan Turley is the chair of Public Interest Law at George Washington University and served as the last lead counsel in an impeachment trial before the Senate in defense of Judge Thomas Porteous. He also serves as legal analyst for both CBS and BBC.