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.
I still believe that. However, my textual views did not recently change
No worries. The virus that causes COVID has undergone so many mutations, that the current Pfizer, Moderna and Astra Zeneca vaccines and monoclonal antibodies used to treat the illness have become compromised. Resistance. How ironic. That’s not to say death is imminent. With any luck these Biden Chinese viruses will hit the US Senate, House of Representatives and Joe Biden any day now and level the playing field. Since these politicos are embracing equity and inclusion, we should welcome these viral insurgents ala ANTIFA BLM.
Resist!
🥳
Mapping Which Coronavirus Variants Will Resist Antibody Treatments
Posted on February 9th, 2021 by Dr. Francis Collins
https://directorsblog.nih.gov/2021/02/09/mapping-which-coronavirus-variants-will-resist-antibody-treatments/
You’re calling for those you disagree with to die. Once again, Estovir, we see how closely you follow Christ’s teachings. (sarc)
The vaccines work just fine against the British variant. They’re weaker contra the South African variant but still provide some protection.
Listening to the Dims, especially Nuwhatever, cite JT in support of their innanity reminds me of an appellate judge from California I met right after the OJ trial while I was out there trying a case. The retiree ambled in our courtroom as I was citing him in some forgettable pretrial motion hearing. When I was done, I went out into the corridor and the jurist introduced himself and the name rang loudly to neither of our surprises. When I asked him what he thought of my presentation today featuring his opinion, the old guy kept it short, sweet and razor sharp: “best argument I never made.” That’s the Dims today.
Although this will cause some heads to explode, there is certainly a lesson to be learned here.
Then the Jewish leaders (House) took Jesus (Trump) from Caiaphas to the palace of the Roman governor (Senate). By now it was early morning, and to avoid ceremonial uncleanness they did not enter the palace, because they wanted to be able to eat the Passover. So Pilate came out to them and asked, “What charges are you bringing against this man?” “If he were not a criminal,” they replied, “we would not have handed him over to you.” Pilate said, “Take him yourselves and judge him by your own law.” “But we have no right to execute anyone,” they objected. This took place to fulfill what Jesus had said about the kind of death he was going to die.
Pilate then went back inside the palace, summoned Jesus and asked him, “Are you the king of the Jews?” “Is that your own idea,” Jesus asked, “or did others talk to you about me?” “Am I a Jew?” Pilate replied. “Your own people and chief priests handed you over to me. What is it you have done?” Jesus said, “My kingdom is not of this world. If it were, my servants would fight to prevent my arrest by the Jewish leaders. But now my kingdom is from another place.” “You are a king, then!” said Pilate. Jesus answered, “You say that I am a king. In fact, the reason I was born and came into the world is to testify to the truth. Everyone on the side of truth listens to me.” “What is truth?” retorted Pilate. With this he went out again to the Jews gathered there and said, “I find no basis for a charge against him. But it is your custom for me to release to you one prisoner at the time of the Passover. Do you want me to release ‘the king of the Jews’?” They shouted back, “No, not him! Give us Barabbas!” (Antifa/BLM) Now Barabbas had taken part in an uprising. John 18
As a Jew, I can say that “they wanted to be able to eat the Passover” made me laugh out loud. So does analogizing Trump to Jesus. I can hardly think of a less Christ-like person.
🙄 of course you would completely whiff on the point of what happens when you prosecute someone with millions of followers for exercising his first amendment rights.
How dare someone miss a completely deluded point not reflective of reality at all???!!!
the left wing trolls are not here to dialogue. Replying to them only furthers their employment.
Saul Alinsky Rules for Radicals
“Ridicule is man’s most potent weapon. There is no defense. It is almost impossible to counterattack ridicule. Also it infuriates the opposition, who then react to your advantage.”
“If you push a negative hard and deep enough it will break through into its counterside; this is based on the principle that every positive has its negative.”
“The price of a successful attack is a constructive alternative.”
“Pick the target, freeze it, personalize it, and polarize it. “
When Americans regain control of their country, they will be fully justified in illegal deportation en masse and elimination, with extreme prejudice, of their opponents.
________________________________________________________________________________________________________________________________
Hitler, Stalin, Mao: “Kill your opponents!”
The Israelites killed every living thing in Jericho to eliminate their opponents:
Joshua 6:21
“They devoted the city to the Lord and destroyed with the sword every living thing in it—men and women, young and old, cattle, sheep and donkeys.”
Tough day, JT. Called out for your own words by Neguse almost perfectly timed to your hopping on twitter to talk smack about his presentation.
Noted: you’ve taken a stand…, you are the official spokesperson for the Lynching Party (once known as the republican party).
Elvis Bug
Elvis Bug attempts to reframe history. The lynching was done by DEMOCRATS.
Not on 1/6 trump mutant.
Elvis Bug
Elvis, some fun seeing Trump being hoisted on the Turley petard today. Now that Jonathan’s for the January Exemption for impeachments, maybe he can dig up something fast that isn’t “but hey, he’s a Republican!”.
We’re used to that around here
Interesting to see…, Neguse called Turley out on his own, past, words at precisely the moment Turley was popping off on twitter during Neguse’s presentation. Turley got roasted over it, too.
Neguse should be replacing Jennifer Rubin on the Turley s*&t list. Maybe even Sally Yates?? Or the brass ring…, Lawrence Tribe???
We’ll see what he dredges up…
Elvis Bug
It’s even better to watch video of Turley and others shifts over time –
https://twitter.com/mmfa/status/1359310648098881537
Better yet, certainly! Ha!!
Elvis Bug
Ah the lynching party was the Democratic Party. It’s history.
Not anymore, Big Mess.
Elvis Bug
Tell that to the black business owners in any dim controlled city.
Why? It’s too fun watching you squirm to try to justify your 1860’s mindset.
Elvis Bug
Naw if I had a 1860s mindset it’d be pistols at dawn for the radical trolls around here.
Ahhh you’d shoot yourself in the foot in your exuberance to shoot those who mystify you. Side bar: it only takes five posts or less to get Mespo openly speculating about who he wants to shoot. That’s what they taught you in law school, right?
Elvis Bug
Pelvis Beetle:
“That’s what they taught you in law school, right?”
***********************
Naw, my father taught me to back my words. Yours, apparently not. Beta male, I guess given your soft take on most topics and passive-aggressive style of argument. Somehow you think I’d have a moment’s hesitation to completely disembowel anyone or anything that threatened me, mine or my liberty. Wrong. Wrong. Lots of men like us. Not so many boys. None, in fact.
Oh I love your reverting so quickly to Bannon speak with the beta male schtick. I’m guessing the way you speak of it you don’t realize how much you venture into true poseur territory with your babble. But hey, I’m the supportive sort…, I’m always down for seeing someone practice even if they have to fake it to make it.
Elvis Bug
Elvis:
Oh I love your reverting so quickly to Bannon speak with the beta male schtick.”
*******************
Well you are a beta male. Bannon’s a man. You’re a male. Learn the difference. You can start at Arlington.
Are you saying I should visit my uncle’s grave again?
Elvis Bug
mespo’s a real manly hero.
In his internet fantasy. In real life he’s a mousy ambulance chasing lawyer
Gainesville:
I love the way you presume cowardice just because someone puts your words right back in your face and dares you to do something. I’ve had my share of physical altercations. Never with a old gomer like you who most men pity rather than hold in contempt. I find you a caricature of a man, so you’re save from everything but ridicule.
https://youtu.be/RqQn2ADZE1A
Elvis Bug
I presume fat ambulance chasing lawyers like you a long time ago chose a nice house and tassle loafers for bar fights and caluses. You have too much to lose – probably including a gut – to actually fight defending your inadequacies. Either that or you are far too dumb for anyone to actually hire you.
But hey, you keep pretending your Richard the Lionhearted or Clint Eastwood on the internet. You’re likely much closer to My Cousin Vinny than either of them.
Oh yeah, grow up. You’re not your Action Jackson doll either and nobody’s impressed.
Well Joe I’m sure your Chi Com masters are very dis-satisfied with you as their “#1 West Hollywood “Boys”.
They’ll be sending back to farm league soon.
Trump won’t admit that he lost the election, but Trump’s lawyers said in their impeachment trial statements that Biden won:
“He [i.e., Trump] was removed by the voters”
“The American people just spoke. And they just changed administrations.”
“The people are smart enough to pick a new administration if they don’t like the old one, and they just did.”
The Senate has confirmed with a 56-44 vote that it is constitutional for the Senate to hold an impeachment trial for a former president.
No….the Senate Voted to hold a Trial….that does not make it “Constitutional”.
The Democrats and a few Republicans made political votes…..as the outcome is not in doubt….there shall be an Acquittal.
Those Republicans know they can now vote against Conviction and be on both sides of the issue if they wish.
You did notice the House Managerrs used an edited Video that left out exculpatory evidence did you not?
Even at in a “Trial” the Democrats cannot tell the truth and have to use underhanded methods to pursue their agenda.
In a real “Trial” the Defense would have immediately filed a Motion to Dismiss and accused the Prosecution of Misconduct under Federal Rules of Procedure.
According to C-Span’s transcript, “the question is whether Donald John Trump is subject to the jurisdiction of the court of impeachment for acts committed while President of United States notwithstanding the expiration of his term in that office.” The Constitution gives the Senate the right to decide this question, so yes, it was a vote on the constitutionality. He is subject to the Senate’s jurisdiction for this impeachment trial because the Constitution gives the Senate the responsibility for deciding that question.
The House Managers are not responsible for presenting exculpatory evidence to the Senate, just as Trump’s lawyers are not responsible for presenting evidence that confirms his guilt to the Senate. This is a “real” trial. It simply isn’t a trial that occurs in the judicial branch. The Constitution specifically gave the Senate responsibility for impeachment trials, whether you like it or not.
That same Constitution states in Impeachment Trials of the President….the Chief Justice of the Supreme Court “Shall” preside.
As Trump’s Counsel pointed out….”Statutory Language constructs” require the meaning of specific words or phrases to mean the exact same thing thoughout….thus “The President” must have the same meaning in the Constitutional language….and any proceeding pursuant to that.
So why no Chief Justice and just Leaky Leahy in the big chair?
Or…do you get to magically pick which parts and interpretations you wish?
LOL, why don’t you quote what it says: “When the President of the United States is tried the Chief Justice shall preside.” Trump is not “THE President” right now. He is a former president, and Biden is “THE President” of the US. Roberts isn’t president because he’s not required to preside over the impeachment of a former president.
Well duh! They’re Congress. Everything they do they believe is constitutional. And that’s why we have a Judicial branch, you know, the body that upholds or strikes down what Congress and the President thought was constitutional. Now, about the Chief Justice, that according to the constitution, shall be the person that presides over the impeachment of the President. He presided over the first impeachment trial, so I’m fairly confident he respects his constitutional oath at least that much. Is he violating his Article III duties now? Gone fishing? Out with Covid? Being held hostage by insurrectionists?
The Constitution gives the Senate the right to decide this question, so their determination determines whether it’s constitutional.
Trump is not the President now. Biden is the President now. Roberts is not obliged to preside over the trial of a former president.
Aninny:
Ah, The Senate doesn’t make pronouncements on constitutionality. That’s another branch. Two guesses!