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.
Hey Joe Biden! Where are the $2k checks you promised us all? What’s the hold up?
Looking forward to it. And it will happen long before the prospect of the Chinese communist party kicks in my front door. Party on.
Isn’t it convenient how often Turley’s positions change depending on which way the partisan wind is blowing?
I’m sure you’ve parsed his articles published 25 years ago with the utmost precision.
As I’m sure you’re inwardly proud of taking a full on stand for lynchings called from the office of the president.
Elvis Bug
Elvis Bug, why the fetish with lynching? I’m glad you agree that the office of President Biden is the one doing it. It’s the Democrat way.
Who built the gallows outside the Capitol? Who stormed the Capitol to pull Pence and Pelosi out?
Elvis Bug
Antifa builds gallows, not MAGA
https://twitter.com/Justin_Ling/status/1346905155690643460/photo/1
bahahahahahahahahaha!!
Elvis Bug
This guy in the plaid shirt worked on the gallows –
https://twitter.com/evenbev/status/1347231802495299584
Not sure if he’s been identified yet.
I wonder as well! My guess is it would be serious news if he had. I haven’t heard it.
Elvis Bug
CONvenient:
Too nuanced an argument for your dull protoplasm, I guess. Maybe flash cards would help.
Speaking of flash cards, quick quiz, Big Mess…
When did your ideas of freedom cease to include the concept of democratic representation being determined by free and fair election?
Was it because Trump L’Orange promised to punish the people you hate?
Elvis Bug
Pelvis Beetle:
“When did your ideas of freedom cease to include the concept of democratic representation being determined by free and fair election?”
**************************
1776 – when the voters were people with skin in the game. Not every breathing protoplasm without the sense God gave a donkey who finally figured out they could vote other people’s money into their pockets with the banner of “compassion” flapping over their heads and never once considering that taking from others to give to yourself is the very antithesis of compassion.
Those pesky women and people of color! Those indignant natives…, why couldn’t they just sit back and let the Europeans rape and plunder as god intended???!!!!
Why couldn’t they all just let those honorable white men own what was rightfully theirs?
Elvis Bug
Elvis Impersonator:
Those “honorable white men” gave you the cushy pulpit to rain down your stupid on us with impunity. So you might be a little more gracious to your betters.
I honor my betters every single day…, and through that I get patience to deal with blowhards such as yourself.
Elvis Bug
Fake Rocker:
Your “betters” are a big crowd. As for your notion that the groups you mention didn’t have skin in the game. Some did and some didn’t. Welcome yourself to bigotry of low expectations. Lots of free blacks, woman and Indians with credentials and accomplishments better than yours. In fact, almost any accomplishment would nose you out.
Love your sheer cluelessness. Don’t suppose it can be helped. Enjoy the fantasy…, because fantasies can be fun.
Elvis Bug
One good thing did come out of this. Attorney General Merrick Garland has a duty to investigate Bush officials for war crimes (which there is no statute of limitations). The entire premise of this charade is that we can and should prosecute presidents after leaving office, if they committed high crimes..
If Garland is loyal to his Oath of Office, at minimum he need to convene a “21st Century Truth Commission on Unconstitutional Authoritarianism” – held publicly, with minimal redaction, but offering Bush officials immunity from criminal prosecution in exchange for truth-telling that mandates reforms. Basically a plea bargain for crimes like torture, violating the FISA Act, felony warrantless wiretapping, employment tampering and felony Cointelpro style blacklisting tactics.
Democrats have been wanting this opportunity for almost 20 years, so what’s the excuse now? Let’s go!
Rumor has it, Trump will just submit this marvelous song by Chris Stapleton in his defense and do a Clint Eastwood on this Clown College and the cesspool that renders from it:
“Well the road rolls out like a welcome mat
To a better place than the one we’re at
And I ain’t got no kinda plan
But I’ve had all of this town I can stand
And I got friends out on the coast
We can jump in the water and see what floats
We’ve been saving for a rainy day
Let’s beat the storm and be on our way
It don’t matter to me
Wherever we are is where I wanna be
And, honey, for once in our life
Let’s take our chances and roll the dice
I can be your lucky penny, you can be my four-leaf clover
Starting over”
Professor Turley proves yet again how his wit is so far ahead of most of his rivals and detractors.
He is a litigator of the highest ability.
His insisting the 21 year old photo be used as a “recent” image proves both his scholarly ability but also his finely tuned sense of humor…..that is so lost on some who attend here.
Good retort, JT. Boiling down to that famous line by Antonio in The Merchant of Venice:
“The devil can cite Scripture for his purpose.
An evil soul producing holy witness
Is like a villain with a smiling cheek,
A goodly apple rotten at the heart.
O, what a goodly outside falsehood hath!”
Act 1Sc 3
LOL. Well, Prof. Turley, I’m pleased that you have not completely abandoned the Madisonian views expressed in the Duke piece, since I recently went to the trouble of downloading and reading all 146 pages and 656 footnotes of it. It is a lengthy article and I found it both interesting and compelling. It also caused me to pull out my old volume of Burke speeches to reread his decimation of Hastings, a trial, by the way, that required six years to conclude. That led me in turn to an article in a 1914 issue of The Classical Journal comparing Burke’s efforts with those of Cicero in the trial of Verres, the governor of Sicily, in 70 BC. Hastings was acquitted by the House of Lords. Verres, having failed to postpone his trial, voluntarily went into exile on recommendation of his own defense counsel before a verdict could be rendered.
Ultimately, impeachment is a political process designed to deal with political wrongs. While I have no difficulty with the decision to impeach in this instance, I fear that in the absence of a fully developed record and the testimony of witnesses, much of the potential benefit to the body politic will be lost.
Mike A:
Cicero and Burke knew when they’d been beat and for the same reasons — too much time had passed.
Very much enjoyed this, Professor Turley – and I always appreciate your sense of humor.
And while the progtrash is babbling about ‘insurrections’ and what not, just remember Antifa is Democratic Party muscle.
http://ace.mu.nu/archives/392603.php
The communists (liberals, progressives, socialists, democrats, RINOs) are increasingly irrational. The communists (liberals, progressives, socialists, democrats, RINOs) are hysterical and incoherent, nay, rabid, in their fear of the actual President Donald J. Trump. The impeachment of a former president is manifestly unconstitutional. The minimum wage has no basis in the Constitution and is manifestly unconstitutional.
Capitulating and succumbing to China, giving Iran nukes, electing ineligible candidates of foreign influences, failing to defend the border, killing the energy sector and diminishing the economy are treason, per the
Constitution, as “…adhering to their Enemies, giving them Aid and Comfort.” Congress cannot tax for redistribution or charity and Congress cannot regulate anything other than money, the flow of commerce and land and naval Forces. Congress has no power to “claim or exercise dominion over” private property. The entire American communist welfare state is unconstitutional. Oh, and, did I say, it is illegal to steal an election.
_______
“I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.”
– Isoroku Yamamoto
________________
The communists (liberals, progressives, socialists, democrats, RINOs) are terrified. The communists (liberals, progressives, socialists, democrats, RINOs) stole the election and are running from the scene like bank robbers; as they try to cover up their egregious, treasonous culpability with a spectacular, circus-like show trial. The communists (liberals, progressives, socialists, democrats, RINOs) know they will suffer extremely prejudicial electoral retribution in 2022 and beyond. Breakout the Xanax at the DNC.
“. . . Cite 1992 Duke Article . . .”
Retroactive dating of an article on retroactive trials?
Wanna bet Trump is going to refuse to pay Bruce Castor’s bill? Hoo boy, that was WTF bad.
Listening to this sham-peachment trial is like Chinese water torture.
If you are talking about construing the Constitution and impeachments, which are very rare, 21 years ago is recent history. In any event, Turley’s trying, but failing, to explain away the fact that before he went on the GOP payroll, he believed that impeachment after someone is no longer in office is constitutional and serve a valuable purpose. How else to address egregious conduct like inciting a riot by someone so absurdly abnormal as Trump?
Ah, “Retroactivity.”
If we conduct a retroactive immigration trial with reference to the original intent of the American Founders and their four iterations of their Naturalization Acts of 1790, 1795, 1798 and 1802, Rep. Joe
Negusse et al. would be precluded from even effecting a permanent presence in this once great nation.
_________________________________________________________________________________
Naturalization Acts of 1790, 1795, 1798 and 1802
United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the
jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…
I think Mr. Raskin hit the nail on the head. “Their argument is that if you commit an impeachable offense in your last few weeks in office, you do it with constitutional impunity.”
No, their argument is that you cannot impeach someone who is out of office. Removal from office is the punishment. (While we’re at it, the notion that he committed an impeachable offense is fraudulent psyops).
The House impeaches, and the Senate holds the trial. Trump was impeached by the House while in office. The argument is not about whether you can “impeach someone who is out of office,” but about whether you can hold an impeachment TRIAL for someone who was impeached while IN office. Disqualification is another punishment put forth by the Founders. This trial will determine whether Trump is disqualified.
Disqualification is another punishment put forth by the Founders. This trial will determine whether Trump is disqualified.
You need a 2/3 majority to impeach, another vote to disqualify, and you have to get past the argument that disqualification cannot apply to elected offices. The problem is that you cannot impeach as he is out of office.
No, Arty, you don’t “need a 2/3 majority to impeach.” Trump was ALREADY impeached by a majority vote of the House.
You don’t listen. Impeachment occurs in the House. Trump was impeached by the House while he was IN office.
Most legal scholars believe that an impeachment trial can occur after the person is out of office for acts taken while in office. You haven’t made an argument about why their argument is wrong. Simply asserting they’re wrong is ineffective.
You don’t listen. Impeachment occurs in the House. Trump was impeached by the House while he was IN office.
You fancy its a satisfactory use of everyone’s time to make a point about the distinction between popular terminology and legal terminology. Because you’re a sh!t.
I know, right??? It’s just unconscionable when someone has the temerity to point out factual reality!!! In fact, it’s enough to drive one to their fainting couch!!
Elvis Bug
Did Raskin and others prove that this was an “attempt to overthrow the government”? Which is the common understanding of what “insurrection” is….
What happened on Jan. 6 was a riot. Aided and abetted by the lack of preparedness at the Capitol. Aided and abetted by video showing Capitol Police LETTING protestors into the building!
Why was there not enough security at the Capitol when they KNEW, they had advance knowledge of, they were advised as such? Has Pelosi ever explained this lack of preparedness? Among all the other unanswered questions?
Where is the Chief Justice? MIA? Why?
Because this is an unconstitutional political show trial full of lies and deception put on by shameless Democrats.
Hey Joe Biden! Where are the $2k checks you promised us all? What’s the hold up? THIS Democrat show of UNITY is holding up our $2k checks? Say it ain’t so, Joe. Not very unifying, is it?
I doubt most who voted Socialist realized in comparison to their Oath of Office to The Constitution those in Senate and in Representatives are in fact guilty of of Insurrection as are those playing games instead of getting to work and in violation of their oath of office. Of course now to our dismandy we have to include the US Military not the veterans the ones in service now who also failed to uphold their oath of office.
Lol! Love your profile pic of the younger JT! Your photos are adorable at every age, just like your witt. Thx for the chuckle.
Thank you so much. That is the nature of a term, isn’t it? It ends. Big surprise.
The problem for Raskin is that he is hysterical and incoherent and has no acumen in law – the boy who cried wolf and the baby who won’t stop screaming.
For the umpteenth time, “THE” president…” in Article 2, Section 4, omits and, therefore, excludes any and all former and previous presidents from impeachment and conviction.
You and Raskin et al. have been impeached and defeated definitively, irrefutably and immutably.
The glaring problem and failure in America today is the dereliction and negligence of, and the inherent usurpation of power by, the Supreme Court which should have struck this bit of constitutional idiocy down
immediately and long ago.
America is now lawless.
I hope the House managers also acknowledge the other changes in opinion by other esteemed Law Professors. I wonder if thirty years ago or even twenty is recent, what do they think is a long time. I understand using the words of the man that spoke for Trump as a battering ram against him, but I hope Professor Turley is given a chance to clarify his position. Regardless of what one thinks about the preceding or Trump, this is too important to not take deadly seriously.
This is a clown show which should not be taken seriously.
So you take back the words you say? Starting to even sound like Trump, “I don’t take responsibility at all”
Ah trying to act like a fish but only Tilapia trash
“His reliance on the Duke article is not misplaced. It is only his characterization of my position that was misleading.”
That’s Professor Turley’s nice way of saying Rep. Neguse lied about it. Or, as Neguse’s very name suggests: He made ‘negative use’ (Neg-use) of the truth.
Since completing his law degree 12 years ago, he’s spent < 2 years associated with law firms, during most of which time he was campaigning for office. He's rather rusty on this stuff.
I take it your over the target, Professor.