Category: Constitutional Law

Constitutional Law, Courts, Politics

New York Court Dismisses State Charges Against Manafort

I previously wrote about what I viewed as a dangerous trend among New York Democratic politicians pledging to charge former Trump campaign chair Paul Manafort under state law to negate any benefit from a federal pardon by President Donald Trump. Democrats rallied supporters to the dubious cause of watering down the state protections against double jeopardy. It was the ultimate example of the mania surrounding Trump where citizens would take an axe to their own constitutional protections to get at Trump and his associates. The highly dubious effort was led by New York state attorney general Letitia James and, thankfully, it has failed. The New York courts are not nearly as dismissive of individual rights. The state charges were thrown out today on the basis of double jeopardy. The question is now whether this will be a prelude to a presidential pardon.

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Congress, Constitutional Law, Politics

An “Indelible Record”: President Sends Incendiary Letter To The House Speaker On Eve Of His Impeachment

President Donald Trump lashed out at Speaker Nancy Pelosi and the House Democrats yesterday on the eve of today’s impeachment vote. The letter, which can be read here, unleashed invective and angry responses to the expected impeachment. While the President quotes me in the letter, most of the letter has the signature style of the President and immediately drew objections over its tenor and assertions. Pelosi called the letter “ridiculous” and “sick.”

The President declares “It is time for you and the highly partisan Democrats in Congress to immediately cease this impeachment fantasy and get back to work for the American People. While I have no expectation that you will do so, I write this letter to you for the purpose of history and to put my thoughts on a permanent and indelible record.”

This letter will certainly prove indelible.

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Bizarre, Congress, Constitutional Law, Criminal law

Swalwell: Failing To Turn Over Documents Is Proof Of Guilt

Rep. Eric Swalwell, D-Calif., has made sensational statements into a signature style over the last couple years. However, this week Swalwell appears to be contesting the touchstone of due process: the presumption of innocence. On Tuesday, Swalwell declared that, President Donald Trump refuses to give Congress the documents and witnesses that it has demanded, he is clearly guilty of all charged offenses. Swalwell declared “We can only conclude that you’re guilty.” Trump has gone to the courts to challenge the demands under presidential immunities and privileges.

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Congress, Constitutional Law, Courts, Lawyering, Media

“A Judge Would Be Disqualified”: Justice Ginsburg Again Wades Into Political Controversies In Interview

I have previously criticized Supreme Court Justice Ruth Bader Ginsburg for her continued political comments in speeches to liberal and academic groups.  While not unique on the Court, Ginsburg has repeatedly crossed the line of traditional public speaking in discussing political controversies, pending issues before the Court, and even criticizing the President. Despite repeated controversies in speaking publicly on political issues, Ginsburg remains undeterred.  Earlier this year, Ginsburg again repeated her view that sexist voters prevented Hillary Clinton from being elected president — a repeat of controversial comments in her 2017 speech. This week, Ginsburg commented on the merits of President Donald Trump’s call for a review of the Supreme Court and even criticized senators who have made public statements about the impeachment.

Indeed, the most ironic part of her commentary was Ginsburg noting how inappropriate it is for senators to be discussing their views of the merits before any actual impeachment. She insisted “if a judge said that, a judge would be disqualified from sitting on the case.” That raises a rather uncomfortable question as to what Ginsburg was doing in that very interview.

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Bizarre, Congress, Constitutional Law, Criminal law

Pelosi On Dropping The “Devastating” Bribery Article: “I Am Not A Lawyer”

I was pleased to see that the Judiciary Committee dropped previous claims of bribery, extortion, campaign finance and obstruction of justice as the basis for impeachment. I testified that the repeated assurances on these allegations from members, legal analysts, and my fellow witnesses were well outside the definitions for these crimes. The Committee ultimately went forward with the only two articles that I viewed as legitimate while rejecting my arguments to wait to build a sufficient record for submission to the Senate. I have received considerable criticism for my long opposition to the bribery theory as unsustainable as an impeachable offense. Thus, I was interested in hearing from the two members who were most adamant in their past declarations that bribery was established: Speaker Nancy Pelosi and House Intelligence Committee Chair Adam Schiff. Speaker Pelosi has now responded and her answer is far from satisfying. Frankly, calling the evidence of bribery “devastating” is a lot like calling the Ukrainian call “perfect.” It can be dismissed as hyperbolic but Pelosi was declaring the expected basis for the impeachment of an American president.

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Academia, Bizarre, Congress, Constitutional Law

“The First Time In History”: Gerhardt Claims McConnell Is The First Senate Leader To Coordinate With White House On An Impeachment Trial

University of North Carolina Law Prof. Michael Gerhardt made a remarkable claim this week when asked about stories that Majority Leader Mitch McConnell (R, Ky.) was coordinating on the details of the Senate impeachment trial with the White House. Gerhardt claimed that such a thing has never happened in history. Despite my long association and friendship with Gerhardt, I must disagree with that remarkable suggestion.

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Congress, Constitutional Law, Politics

A Brief History Of Time: A Response To Chairman Schiff On The Need To Impeach By Christmas

The House Judiciary Committee is about to approve two articles of impeachment as member after member last night declared that time is of the essence. The House is now set to fulfill its pledge to impeach President Donald Trump by Christmas. For some us, the mad rush toward impeachment by the Democrats has been utterly incomprehensible.  It is difficult enough to go to the Senate in a presidential impeachment without an accepted crime and on the narrowest basis in history.  However, the Democrats know that they have combined those liabilities with the thinnest record of any modern impeachment – a record filled with gaps and conflicts.  The Democrats know that this record is guaranteed to fail and could easily justify the Senate holding a trial as cursory as its hearings.  Yet, they would prefer guaranteed failure rather than build a credible case for removal.  Why? The reasons put forward by House Intelligence Committee Chair Adam Schiff (D-Calif.) and others are not credible and, given the paucity of examination given these claims, it is worth closer scrutiny.

So, to use Stephen Hawkings’ famous construct, here is a brief history of time for impeachment.

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Columns, Congress, Constitutional Law, Society

The Art of Impeachment: Why I Still Just See A Banana Taped To A Wall
YouTube Screenshot

Below is my column in The Los Angeles Times on the decision of the House leadership to proceed with an impeachment of President Donald Trump on two articles of abuse of power and obstruction of Congress.

Art and impeachments are rarely an exercise of objectivity.  I testified that the impeachment alleged crimes like bribery, extortion, campaign finance violations, and other crimes (including those based on the Mueller investigation) are wildly outside standard definitions of those crimes.  Where the Committee obviously departed from my position was moving forward with this record. While I testified that Trump could be impeached for non-crimes like abuse of power, the record in this case is far too thin and incomplete to support submission to the Senate. Yet, how one sees this impeachment seems to depend on one’s perspective in the art of impeachment.

Here is the column:

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Congress, Constitutional Law, Courts, Media

Alan Morrison: Turley Is Right But Ultimately Wrong

I have the distinction of serving at George Washington Law School with many accomplished academics, including Professor Alan Morrison who is one of the most respected legal figures in the country with extensive litigation and public interest experience. Professor Morrison has written the column below where he disagrees with my ultimate position in the impeachment hearing and I am delighted to offer this opposing view as a guest columnist on our site.

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Congress, Constitutional Law

Impeachment Addiction? Rep. Bass Lays Out Possible Second Impeachment

We previously discussed the declaration of Rep. Al Green that the House might approve successive impeachments against President Donald Trump. On Tuesday, Rep. Karen Bass, D-Calif., laid out an additional plan, impeach Trump if he wins reelection in 2020 and the Democrats take the Senate. The comments suggest a certain impeachment addiction that may be growing in the Democratic ranks. Saying that you may want a do-over before it is over reflects a growing political dependence on impeachment as a form of political speech.

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Congress, Constitutional Law, Politics

Democrats Drop Bribery and Other Crimes In Favor Of A Two-Article Impeachment

The Democratic leadership announced today that it has decided that President Donald Trump will be accused of just two articles of impeachment: abuse of power and obstruction of Congress. I commend the Committee in dropping the previous claims of bribery, extortion, campaign finance and obstruction of justice. While my fellow witnesses made good-faith arguments for those articles, my testimony primarily focused on the legal and constitutional flaws in claiming those criminal acts. I also commend the Committee in not following the suggested course of many in ignoring the legal definitions of those crimes to claim an impeachable offense. Finally, Judiciary Chairman Jerry Nadler is correct as he stated yesterday that I repeatedly stated that President Donald Trump could be impeached for a non-criminal act like abuse of power if it could be proven. I also said that he could be impeached for obstruction of Congress, if proven. However, this record falls considerably short of the record needed to support such claims for a submission to the Senate.

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Bizarre, Congress, Constitutional Law

Impeaching By The Gross? Green Says House Could Impeach Trump Repeatedly

We have previously discussed Rep. Al Green’s remarkably low and fluid standard for impeachable offenses. It now appears to be not only low and fluid but repetitive. On Thursday, the Texas Democrat said on C-Span that a “president can be impeached more than once” and that there is “no limit” to how times the House might want to impeach Trump. In my testimony before the House Judiciary Committee, I warned that this incomplete record would lend itself to a type of impulse-buy impeachment. Green’s remarks raises the specter of not just impulsive but compulsive impeachments.

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Congress, Constitutional Law, Politics, Testimony

TURLEY TESTIFIES AT TRUMP IMPEACHMENT HEARING

This morning I will be testifying at the House Judiciary Committee in the opening hearing into the impeachment of President Donald J. Trump. My testimony is available below.

It has been roughly 20 years since I testified at the same hearing in the impeachment of President William J. Clinton and roughly 10 years since I was lead counsel at the last Senate impeachment trial (with my co-lead counsel Daniel Schwartz).

The hearing will be held at 10:00 am in 1100 Longworth House Office Building, Washington, DC 20515. It is open to the public.

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Columns, Congress, Constitutional Law, International, Lawyering, Politics, Society

Adam Schiff’s Capacious Definition of Bribery Was Tried in 1787
The Trial of Warren Hastings

Below is my column in the Wall Street Journal on case that may be looming in the background of tomorrow’s opening hearing in the House Judiciary Committee on the impeachment of President Donald J. Trump.

I have been called to testify at the hearing. With only a few days to prepare, I will be completing my testimony today and I will hopefully post it before leaving for the hearing in the morning. This is a daunting but not unfamiliar challenge as an academic. It has been 20 years since I testified at the Clinton impeachment hearing with other constitutional and historical experts on this same question. It has been 10 years since I served as the last lead counsel (with Dan Schwartz) in the impeachment trial of Judge Thomas Porteous. The hearing will begin at 10:00 am in the Longworth House Office Building.

Here is the column:

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