My Recent Position Of 21 Years Ago: House Democrats Cite 1992 Duke Article in Support Of Impeachment

Recently, Laurence Tribe bizarrely claimed that “not long ago” I argued in favor of retroactive trials in reference to my Duke Law Journal article from 21 years ago.  Now, the House managers have claimed that I supported retroactive trials up to a few weeks ago. Rep. Joe Neguse cited my Duke piece at length to support the basis for retroactive trials after saying that I supported such trials until the last few weeks. I felt Neguse did an excellent job in his argument but any suggestion of a recent change would be untrue. His reliance, however, on the Duke article was not misplaced. I did and continue to recognize the value of such trials — and certainly the historical use of such trials. It is the jurisdictional question that has changed for me.  It is true that I did not have reason to write publicly on the Trump retroactive trial until a few weeks ago (like many scholars), but my underlying views changed years before.  However, if my views of 21 years ago are going to be cited as recent or “not long ago,” I would at least appreciate the use of my thinner photos from the 1990s.  To give you an idea of how “recent” this was, here is my picture when I wrote those words. I will now insist on it being used as a recent image.

As I have previously written, I stand by virtually everything that I wrote on the intent behind the Belknap trial and the value of such retroactive condemnations. The rationales that I discussed are still powerful arguments for retroactive trials and make this a close question in my mind.  It is also true, as Rep. Neguse noted, that I have argued that under this theory Richard Nixon could have been impeached after resigning. I have made that same argument recently as the natural application of the theory that the Senate can try anyone regardless of whether they are still in office.  My views of the inherent value of such trials and the application of this theory remain unchanged.

Where I have changed is on the ultimate jurisdictional issue. I have written for years on my evolution on constitutional interpretation toward greater textualist and formalism over the last three decades. See, e.g.,Jonathan Turley, Madisonian Tectonics: How Function Follows Form in Constitutional and Architectural Interpretation, 83 George Washington University Law Review 305 (2015); Jonathan Turley, A Fox In The Hedges: Vermeule’s Optimizing Constitutionalism For A Suboptimal World, 82 University of Chicago Law Review 517 (2015). So I have certainly become more textualist in my views and have discussed the evolution over the years. Other cited scholars like Tribe have also evolved apparently in their views.  There is nothing strange about such evolution in views of constitutional interpretation. When I addressed the textual issues raised by this controversy in the recent impeachment, I favored the same textual and formalist view. Again, I still believe in the values of retroactive trials and that this remains a close question. However, my default remains more textualist on such questions and I believe the text militates against retroactive trials.

In my 1999 Duke Law Journal article on impeachment, I wrote that “[t]he Senate majority, however, was correct in its view that impeachments historically extended to former officials, such as Warren Hastings.” See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke Law Journal 1-146 (1999)(emphasis added). While some have cited that line to show that I have changed my position on the subject. It doesn’t. It indeed was used retroactively in Great Britain as a historical matter, which I have always acknowledged. Yet, there are significant differences in the use of impeachment in both countries. Indeed, the colonial impeachments were strikingly different in many respects. As I noted in the Duke article, “Even if the only penalty is disqualification from future office, the open presentation of the evidence and witnesses represents the very element that was missing in colonial impeachments.”

We are left with the value of a trial for a public judgment on past conduct and the costs of a retroactive trial on the constitutional system. That has remained unresolved. The prior discussion addressed how impeachment serves a type of dialogic role in our society. Such trials can have value as with Trump. However, there are also serious countervailing costs that are equally evident in the case of Trump. The Trump impeachments forced us to address new precedent for its implications of the process used in both impeachments.

My Duke article can be fairly cited for that view to support arguments for retroactive trials. Clearly, these trials mean that impeachment was not considered as a matter solely of removal. The officials were already gone.  It is also unassailable that such retroactive impeachments have occurred historically. Finally, there is no question that an official could bar corrective political action with a resignation. None of that has changed in my view and I have made those points in the current controversy.

In the last 30 years of writings and later serving as lead counsel in an impeachment I have found that departures from the language of the Constitution have often produced greater dangers and costs. I have become more textualist in that sense, but that did not change my view of the meaning of high crimes or misdemeanors. This is only a question of the jurisdiction of the Senate. If I were to write the Duke piece today, I would still maintain that it shows how impeachment trials serve this dialogic role but that, of the three outlying cases, I agree with the decision in Blount (and the view of roughly half of the Senate in Belknap). It was historically allowed but I believe that it is not constitutionally sound. That view against retroactive impeachments is strengthened by what we have witnessed in the two Trump impeachments.

Thus, I do not fault the reliance on the Duke piece by the House managers to support the value of retroactive trials and the historical defense of such trials. I still believe that. However, my interpretative views did not recently change. I do not believe Rep. Neguse was intentionally misleading and it is not his job to explore nuances in academic writings. I understand that he was referring to my recent writings on the Trump impeachment. Yet, I did want to correct the suggestion as untrue and to note that my underlying views changed years earlier.

Update: A recent article suggested that my earlier reference to “drilling down” on this issue meant that I favored a broader interpretation of the constitutional language until a few weeks ago. That is untrue. I said that I “drilled down” on the history and implications on this specific issue in the second Trump impeachment. (“The Trump impeachments will force us to address new precedent for its implications of the process used in both impeachments. I have spent considerable time in the last few weeks drilling down on this issue”). I discussed how this was a close question but how my long-standing views favored such a narrower interpretation. My objection to the House managers was the suggestion that I changed my view on the constitutional interpretation just a few weeks ago simply because I wrote recently about this specific controversy. My underlying interpretative views changed long ago.

 

167 thoughts on “My Recent Position Of 21 Years Ago: House Democrats Cite 1992 Duke Article in Support Of Impeachment”

  1. Jonathan: Your column is a futile attempt to try to rationalize how you changed from supporting retroactive impeachments to now arguing that your views have changed and you now have a more “formalist view” : “My default remains more textualist on such questions and I believe the text militates against retroactive trials”. You don’t explain how the text of the Constitution persuades you in your present views. The text of the Constitution hasn’t changed. You don’t even try to explain why and when your views changed–only that they “changed years earlier”, not just in the last 2 weeks. The issue of retroactive trials of former officials was decided earlier this week. The House managers persuasively argued that the weight of scholarly authority supports the Senate trial of former officials. There is no “January exception”. The Senate unanimously agreed, following the precedent in the Belknap case, that it has jurisdiction to try a former president. You lost the argument.

    Whether you changed your views 2 weeks ago, 2 months ago or 2 years ago is immaterial. In this “age of rage”, that you often complain about, you have come down on the side of a seditionist. It’s just a reminder that even academic scholars can become political partisans. But you did accomplish one thing. You convinced Senate Republicans, in secret, that Trump should be acquitted despite the overwhelming evidence he incited his followers on Jan. 6 to attack the Capitol and try to prevent the certification of the Electoral College vote. 56% of voters agree that Trump actions were so egregious and violated his constitutional oath that he should be convicted and prevented from ever holding public office again. In such a politically divided country that’s significant. Despite Trump’s predicted acquittal he knows he is toxic and will remain so for many years to come. Trump also knows his chances of ever holding public office again ended on Jan. 6! So, in the end and hopefully, the public trial of Trump will have the beneficiary effect of deterring future wannabe dictators from trying to overturn the constitutional order.

    1. You might wanna try decaf for a little while. If that doesn’t work, maybe lithium or mellaril. And I hear electroshock works well too!

    2. “So, in the end and hopefully, the public trial of Trump will have the beneficiary effect of deterring future wannabe dictators from trying to overturn the constitutional order.”

      There is a hollowness to your words.

      What is essential is invisible to the eye.

  2. “However, if my views of 21 years ago are going to be cited as recent or “not long ago,” I would at least appreciate the use of my thinner photos from the 1990s. To give you an idea of how “recent” this was, here is my picture when I wrote those words. I will now insist on it being used as a recent image.”

    Are you kidding? you’d trade a few pounds for those nerdy bifocals? better “drill down” a little more on that, big mistake; just like the whole stupid sham trial – a fees bonanza for petty fogging lawyers, bust for everyone else

  3. How does Trump defend his case on impeachment when the Democrats stand there telling egregious, flat-out lies to the American people and the fake news media repeats all the flat-out, easily fact-checked lies AS IF true? It’s outrageous.

    These Democrats are unprincipled flat-out liars.

  4. Turley does not disavow his old view that impeachments historically have had the effect of righting a Constitutional wrong for the edification of the society in spite of the fact that they were retroactive. Because of his maturing view to adhere more so to the literal wording of the Constitution, he now believes, particularity in light of Trump’s impeachments, that the prudential concerns of retroactive impeachments outweigh their salutary effect to exhibit moral condemnation. But he does not spell out why this is so in his recent articles. He acknowledges that either interpretation of retroactive impeachments- pro or con- is a close call with valid arguments on both sides. Indeed, it would seem that Turley’s position now is very much in the minority. We understand the benefits of retroactive impeachments include holding a former president accountable lest he commits a high crime with impunity by leaving office or resigning before he is impeached or convicted. Moreover, if the former president is unrepentant and intends to run again, the Senate can disqualify him from doing so. The only prudential concern which would outweigh these safeguards to our democracy is the fear that a former president may be impeached long after he has left office for purely political reasons to deprive him of the opportunity to run for office again. This is a risk, but it seems to me rather remote. Nor do I think it outweighs the deterrent effect of preventing a would-be tyrant as president committing an impeachable crime in an attempt to remain in office because he knows that he will be impeached notwithstanding his leaving office. Where as here the question of the intent of the Framers is not unmistakeable on account if their vague and contradictory wording, is it not logical to presume that the Framers would not have intended impeachments to be an exception to fundamental rule of law that no man is above the law? Retroactive impeachments guarantee that no president can violate his oath of office with impunity (assuming that his conduct was not in a criminal violation).

    1. That’s a remarkably incoherent comment. Commit a crime to REMAIN in office? How would that protect him from impeachment? “…lest he commits a high crime with impunity by leaving office…” How would this afford him ‘impunity’ since presidents are not indictable while IN office but, as private citizens, are fully indictable while OUT? Your comment is without merit.

  5. Americans: “we need COVID relief.”

    Democrats: how about impeachment?

    Americans: “We need small businesses to reopen!”

    Democrats: how about impeachment?

    Americans: “We need our kids back in school!”

    Democrats: Best we can do is another impeachment.

    @ForAmerica

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