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.

 

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