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.
We don’t need no education!
We don’t need no thought control!
All in all it’s just another dip in the road.
Don’t bring me down
No, no, no, no, no
Ooh-ooh-hoo
I’ll tell you once more before I get off the floor
Don’t bring me down
CENSORED: Twitter suspended the account of Republican Rep. Devin Nunes this evening.
The Ministry of Truth is now in power and it is run by a bunch of ignorant punks. God help this country.
There used to be a company name twitter, but then one day the went the way of so many others into collapse.
We need to be moving to the alternatives.
I think you already have, Arty. Doesn’t seem to be working out so star spangled awesomely.
Elvis Bug
My husband lost his job due to the lockdowns and you seem to have a regular day job working these boards.
Your employer must pay well since you rack up hours from early morning then knock off around dinner time. My husband used to be an upbeat, a happy go lucky man but the polarization of our nation has turned him into a man like you: bitter, vicious, hateful and cowardly.
Give a girl a hand and tell me sir your employer’s contact info to get my husband a job like yours. Do you get 401k, pension benefits and generous commissions or are you paid by the keystroke?
Best
Funny you should mention lockdowns, Shaqueena. I’ve had to rearrange the 3 jobs I work around Covid versus the 3 jobs I’ve had for nearly 40 years previous. If you track the time I’m here, you’ll notice it’s weighted heavily to the morning, and then the evening if I feel in need of further torture. That’s because I work in between.
I’ve been self employed and have worked in some hellish situations along the way.., I literally came out $13 ahead last month. Covid has certainly caused a ruckus in my life as it has in many others (if said life wasn’t lost as a result of the pandemic). I don’t have a 401k or a pension coming my way. I’m a self employed lifer having gotten several companies off the ground but not the sense to truly profit off their formation because while I’m generally solid with the skills I’ve developed, I’ve been known to get a business off the ground and then split right as it’s getting really profitable if for no other reason that, on some level, I’m not a huge fan of working with lots of other people.
I’m honored you think I’m worthy of being a paid troll as that puts me on the same footing as yourself. For my work to be considered on the same footing as the legendary racist — Squeeky — is a dubious honor, but if it seems as if someone is actually paying me by the keystroke, well, f&*k’n A, gotta take the compliments in whatever form they come in.
Elvis Bug
Good eye Ms. Johnson. I did my best as a single parent but Elvis always had a penchant for being an ankle biter. Perhaps it was the Mercury he drank when he wasn’t sniffing glue.
🤷🏼♀️
Again, thanks for the compliment!!! But as a person of conscience I could never break in on your prized stash. The breakfasts of champions as I’ve often heard you say. I’ve always been impressed by your facial contortions as you ride the blue tiger and would never seek to take that away from you. Party on!!!
Elvis Bug
My daughter did 2 years in community college. Joined the Marines for 5 years. Met the man of her dreams there. Tough Jersey girl, I figure that was the only place she would find a husband. Came out and di 2 years of computer education paid fort by Marine education benefits. She has lost only two weeks of work during Covid. Best suggestion is check what education unemployment in your state will pay for, so your husband can get what is considered an essential job. If you are in CVal,ifornia you most likely out of luck.
Bombs were planted outside the RNC and DNC the night beside the January 6th Capitol event. No suspect has been found? Is anyone questioning why this is?
The mere fact the House of Representatives is and has been obsessed with the Impeachment of Donald Trump is of concern to me, as well as a host of Trump Supporters.
Rashida Tliab, after her successful win for the House Seat, was intent on calling for Trumps Impeachment. One has to ask, just how much of the Trump Impeachment were in motion, before he was half through Trump’s First Term. Wondering, just what Tliab knew? I do.
Next the Lincoln Project was now underway. Full of Swamp Dwellers as well as Pedophiles, in fact one of its Founders is now being called a Predator? What’s so compelling, here we have a Known Pedophile and Sexual Deviant, calling Donald Trump Immoral? What’s that all about?
My concern; The Founders of America were intent on a Government, served by the People, Working Class workers. Not the Monster we’ve become. It was intended for a Citizen Legislator, Senators, Representatives, and a Bureaucracy that was not offered the protections of Unions. Unions that see to it, No Corrupt, Incompetent or Criminal act by a Government Worker can be Prosecuted. Hmmm. Makes us wonder; What were WW I and WW II fought for?
Today, we have in Office a President that is actually more a Threat to America, than are some of our Adversaries. Illegal Drugs, brought into America in the areas not protected by the Trump Border Wall. Further, we have to ask, where is Joe, after his Conciliation Speech, his; Can’t we all work together talk. Hey Joe, where are you? Joe, You’re missing in action, when it comes to Unifying the Country.
Not my President, many of our Congressional Representatives and Senators, including Mitt Romney, Susan Collins, Chuck Schumer, recall his Resist Speech? C’mon now, this impeachment isn’t about Insurrection, Hell No. It is However, about Corrupt Bureaucrats that Spied on the President, Eaves Dropped in the very Office that represents Freedom. That’s all gone now. Once the DNC, Democratic Party located individuals into the Bureaucracy that were transitioned into the White House under the Obama Administration. Those Staff Members that do not rotate after an election. Brilliant? No, it’s Seditious. These Folks are Traitors to America. Insidious behavior by a President that planned to take Donald J. Trump out before he was ever elected.
Now, here we are, the Insidious behavior continues, only this time it’s against not only Donald Trump, but the entire United States Constitution, First Amendment. America’s on a Road to the Abyss, and it’s crossed over from Fantasy to Reality. It was just two years ago, Adam Schiff said he was in possession of Evidence, Extensive Evidence that would Prove Donald J. Trump, then President of the United States of America. Well, as we all know, Schiff LIED. Now it’s Pelosi, who is so obsessed and overcome with Hate, she has failed to Think Straight since she Lied to pass the ACA…Obama Care Act. … .
Mr. Turley, the Current Impeachment Proceedings is Embarrassing and should never have been permitted to make it out of Committee. Come 2024, I will campaign for Donald J. Trump and even more so, to campaign to take out all who went against President Trump. That includes; Romney, Cheney, Murkowski, Sasse, Collins, she’s an anomaly, unfortunately. GOP wins the House back in 2022, Senate back in 2022. And the Presidency in 2024. When this happens, those in the Republican Party, need to get their act together, if they do not back the Agenda of Conservative Americans, Once again, the GOP has been Humiliated by those that thought their Vote wouldn’t count. Some 23,000 Georgians. In fact a friend of mine, a true conservative that I knew would Vote, Didn’t. I just didn’t believe he was going to need My Vote. Really, why was that? His response, after witnessing all the Hype, he just knew the Democrats were going to get anyone that could Fog A Mirror to fill out a Ballot. Harvesting and Filling the Ballots in.
Impeachment is merely the Final Act of a Corrupt Political Party, that has proven to employ the Tactics of Alinsky .. Stalin .. Lenin .. Maduro .. Chavez .. and Gregoire in Washington State, Gregoire vs Rossi . … .
Professor, question. The Constitution at Article lll establishes the Supreme Court and provides for lifetime appointments, unless removed from office, assuredly by impeachment. Say President Biden and Congress expand the court to, say 15 members, and Biden appoints the 6 new members. But then republicans take back the WH and Congress and change it back to 9 justices. Since they have lifetime appointments subject to good behavior, how are the Biden appointees removed?
RIF
January 6th, 2021. Is a day which will live in infamy!