Clinton Impeachment Testimony: House Judiciary Committee

Testimony of Jonathan Turley
Shapiro Professor of Public Interest Law, George Washington University Law School

House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998

INTRODUCTION

Summary: My name is Jonathan Turley. I am a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law. Although I have taught constitutional criminal procedure and lectured on the Madisonian Democracy for years, my views have been most influenced by my litigation in past cases dealing with the separation of powers doctrine, executive privilege, and Article II authority. While the current debate over the impeachment standard can appear arcane and theoretical, these standards have concrete expression in cases involving the lives of average citizens and the conduct of Executive Branch officials. When Congress decides that certain criminal conduct does not rise to the level of impeachable offenses, it is defining a permissible parameter for future presidential conduct. Executive power will fill the space created by any decision of this body………………………………………Page 6

METHODOLOGY

Summary: While I greatly respect the academics on the other side of this debate, I do not believe that there is a basis to exclude the alleged criminal conduct from potential articles of impeachment on any definitional, historical or policy basis. The literature in this area is rich with different theories of constitutional interpretation. There is a danger when these theories are super-imposed on a sparse historical record to advance a claim of clear original intent or restrictive hidden meaning. As will be shown, the meaning of “high crimes and misdemeanors” is inextricably linked to the structural function of the House. Impeachment was created as a process by which the public could address serious questions of legitimacy in the Chief Executive and other officers. It was a process by which illegitimacy could be remedied by removal and legitimacy could be redeemed by acquittal. This is why criminal acts committed in office, regardless of their motivation or subject matter, should ordinarily be submitted to the Senate……………Page 9 Continue reading “Clinton Impeachment Testimony: House Judiciary Committee”

Senate Testimony: National Security and Civil Liberties

STATEMENT OF
PROFESSOR JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
WASHINGTON, D.C.

BEFORE
THE SENATE JUDICIARY COMMITTEE
SUBCOMMITTEE ON TERRORISM, TECHNOLOGY, AND HOMELAND
SECURITY

“A REVIEW OF THE TOOLS TO FIGHT TERRORISM ACT”

SEPTEMBER 13, 2004

Thank you, Mr. Chairman, it is an honor to appear before the Subcommittee
and to discuss the provisions of the Tools to Fight Terrorism Act of 2004. Continue reading “Senate Testimony: National Security and Civil Liberties”

Bobby Unser and the Alleged Abuses of Park Rangers: Testimony in the House of Representatives

TESTIMONY OF PROFESSOR JONATHAN TURLEY
PROFESSOR OF LAW
DIRECTOR OF THE ENVIRONMENTAL LAW ADVOCACY CENTER
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
WASHINGTON, D.C.
BEFORE THE
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATM LAW
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES

May 7, 1998

Mr. Chairman, members of the Subcommittee, I appreciate the
opportunity to speak with you today. The subject of this hearing
is enormously important to many individuals, communities and
agencies in this country. I will not be able to do justice to the
myriad of issues raised by this hearing in my short appearance
before the Subcommittee. I was invited to appear before this
Subcommittee only two days ago while out of town on litigation.
Nonetheless, I felt strongly that some issues should be raised
during the hearing, albeit in an abbreviated form. Mr. Chairman,
with the permission of the Subcommittee, I would like to submit
my complete written statement into the record and to submit a
supplemental statement at a later date. Continue reading “Bobby Unser and the Alleged Abuses of Park Rangers: Testimony in the House of Representatives”

Testimony in Senate Intelligence Committee on Abuses By Naval Intelligence and the Daniel King Case

PREPARED STATEMENT OF
JONATHAN TURLEY
LEAD DEFENSE COUNSELFOR PETTY OFFICER DANIEL M. KING

SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

Thank you, Mr. Chairman.
Mr. Chairman, members of the Subcommittee, my name is Jonathan Turley. I currently represent Petty Officer Daniel M. King and I served as the lead defense counsel for Petty Officer King during his prosecution for alleged espionage. I am also a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law.

I greatly appreciate your invitation to discuss the King case. As a defense attorney and an academic in the national security field,1 I have never encountered a more troubling case. My co-counsel and I were formally invited to testify late last week and have attempted to assemble a comprehensive presentation of the facts in this case over the weekend. Each of our statements today will isolate different aspects of these facts. Like my colleagues, I wish to associate myself with their formal statements as part of our unified presentation. After discussing the charges and basic evidence in the case, my comments will focus on the areas previously identified by the Committee as the subject of today’s hearing. LT Matthew Freedus will then offer a detailed presentation of the facts in this case and the course of the investigation and prosecution. LT Robert Bailey will then detail the specific violations and abuses that have been identified and made part of the record. We understand that your time is limited and, with the consent of the Committee, we have submitted three formal statements. I apologize for the length but we find ourselves in the same position as Blaise Pascal when he apologized for the length of a letter because he lacked the time to write it shorter.2 Continue reading “Testimony in Senate Intelligence Committee on Abuses By Naval Intelligence and the Daniel King Case”

Press Freedom and the War on Terrorism: Testimony in the House Intelligence Committee

Statement for the Record
Jonathan Turley
J.B. and Maurice C. Shapiro Professor of Public Interest Law
George Washington University Law School

May 26, 2006

Before the Permanent Select Committee on Intelligence
United States House of Representatives

I.
INTRODUCTION

Chairman Hoekstra, Representative Harman, members of the Select Committee, thank you for inviting me to testify on the role and responsibility of journalists in covering classified subjects.
The subject of today’s hearing carries particular significance for me as someone who regularly works in both the law and the media. On the legal side, I hold the Shapiro Chair for Public Interest Law at George Washington University where I teach relevant subjects that range from constitutional law to defamation to criminal procedure. In addition to writing on national security subjects as an academic, I have served as counsel in a variety of national security and espionage cases, including as lead counsel in the current terrorism case United States v. Al-Timimi. My litigation background includes cases that have dealt with attorney and journalistic privileges as well as executive privilege and the military and state secrets privilege. Due to my work in cases handling classified material, I have held a clearance since the 1980s.
On the media side, I have worked as a legal commentator for roughly two decades. I am a member of the USA Today Board of Contributors and write regularly for various newspapers, including The Washington Post, Los Angeles Times, Chicago Tribune, and other publications. I have also had four stints under contract with NBC and CBS news and continue to appear as a legal analyst regularly on various broadcast and cable programs.
Many lawyers and journalists have become increasingly alarmed by the erosion of protections for the media in this country. While we often refer to our country as the cradle of press freedom, it is not true that the United States currently represents the high water mark for journalistic rights and privileges. Despite our great tradition of a free press and our extensive media industry, other nations now extend greater protections to their reporters and recent coercive measures against reporters have made the United States an area of considerable concern for international organizations.
The recent controversy over press freedom comes at a time when we have never been more dependent on the Fourth Estate to challenge and check the government’s otherwise unbridled authority. In the last few years, we have faced one of the most serious constitutional crises in our history. President Bush has claimed the authority to violate or to circumvent federal law when he deems it to be in the nation’s interest. There continues to be a raging debate over the President’s authority to order warrantless domestic surveillance and other controversial (and potentially criminal) operations. These are controversies that the Administration obviously would have preferred to avoid. Much anger has been directed at the media and there have been calls for new penalties and prosecutions for reporters and their sources. Continue reading “Press Freedom and the War on Terrorism: Testimony in the House Intelligence Committee”

D.C. Vote in Congress: House Judiciary Committee

STATEMENT FOR THE RECORD
JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

LEGISLATIVE HEARING ON H.R. 5388,
THE “DISTRICT OF COLUMBIA FAIR AND EQUAL HOUSE VOTING RIGHTS ACT OF 2006”

SEPTEMBER 14, 2006

SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
THE UNITED STATES HOUSE OF REPRESENTATIVES

I.
INTRODUCTION

Chairman Chabot, Ranking Member Nadler, members of the Subcommittee, it is an honor to appear before you today to discuss the important question of the representational status of the District of Columbia in Congress. I expect that everyone here today would agree that the current non-voting status of the District is fundamentally at odds with the principles and traditions of our constitutional system. As Justice Black stated in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Continue reading “D.C. Vote in Congress: House Judiciary Committee”

Testimony: D.C. Vote in Congress (Senate Judiciary Committee)

STATEMENT FOR THE RECORD
JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

ENDING TAXATION WITHOUT REPRESENTATION:
THE CONSTITUTIONALITY OF S. 1257

MAY 23, 2007

COMMITTEE ON THE JUDICIARY
THE UNITED STATES SENATE

I.
INTRODUCTION

Chairman Feingold, Senator Specter, members of the Committee, it is an honor to appear before you today to discuss the important question of the representational status of the District of Columbia in Congress. At the outset, I believe that it is important for people of good faith to acknowledge that this is not a debate between people who want District residents to have the vote and those who do not. I expect that everyone here today would agree that the current non-voting status of the District is fundamentally at odds with the principles and traditions of our constitutional system. As Justice Black stated in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”

Today, we are all seeking a way to address the glaring denial of basic rights to the citizens of our Capitol City. Clearly, this is a matter that is heavily laden with passions from decades of disenfranchisement. However, there is a tendency to personalize the barriers to such representation and to ignore any countervailing evidence in the constitutional debates. In the last Senate hearing, my friend Delegate Eleanor Holmes Norton told Senators that if they are going to vote against this bill, “do not to blame the Framers blame Jonathan Turley.” Del. Norton went further to argue that it was “slander” to claim that the Framers intended to leave District residents without their own representatives in Congress. In reality, I have long argued for full representation for the District and abhor the status of its residents. As for claims of slandering the Framers, truth remains an absolute defense to defamation and the record in this case could not be more clear as to the intentions of the Framers. While some may view it as obnoxious (and indeed some at the time held the same view), the Framers most certainly did understand the implications of creating a federal enclave represented by Congress as a whole.

Unlike many issues before Congress, there has always been a disagreement about the means rather than the ends of full representation for the District residents. Regrettably, I believe that S. 1257 is the wrong means. Despite the best of motivations, the bill is fundamentally flawed on a constitutional level and would only serve to needlessly delay true reform for District residents. Indeed, considerable expense would likely come from an inevitable and likely successful legal challenge — all for a bill that would ultimately achieve only partial representational status. The effort to fashion this as a civil rights measure ignores the fact that it confers only partial representation without any guarantee that it will continue in the future. It is the equivalent of allowing Rosa Parks to move halfway to the front of the bus in the name of progress. District residents deserve full representation and, while this bill would not offer such reform, there are alternatives, including a three-phased proposal that I have advocated in the past. Continue reading “Testimony: D.C. Vote in Congress (Senate Judiciary Committee)”

Charles Bakaly III and Telling What Isn’t Secret

The New York Times

July 17, 2000

The contempt trial of Charles Bakaly III is something of a curiosity in Washington. In a town where leaks flow like a powerful torrent down every avenue, the prosecution of a spokesman based on an innocuous disclosure seems almost comically misplaced. Nevertheless, Mr. Bakaly, who was the spokesman for the independent counsel Kenneth Starr, is facing a criminal conviction for denying that he was the source for a New York Times reporter in January 1999.

For defense attorneys, the prosecution of a government lawyer would have been welcome if it were for leaking information that could not legally be made public. Government lawyers routinely leak facts from grand jury proceedings and commit other ethical violations with no response from most federal judges.

But Mr. Bakaly is not in the dock on such a charge; he is accused of criminal contempt under a rule that punishes false statements that delay or obstruct a court. The statements and the delay, however, came after a legal error of the court itself, which misinterpreted a federal law. The decision to initiate an inquiry into confidential communications raised serious concerns for lawyers who handle high-profile cases. The decision to pursue a criminal case against Mr. Bakaly only magnifies those concerns. Continue reading “Charles Bakaly III and Telling What Isn’t Secret”

Our Prison Profiteers

The New York Times
August 3, 1990

They run the new correctional ”hotels,” and some of their daily rates would make Leona Helmsley blush.

Across the country, local sheriffs are turning brisk profits as suppliers of precious cell space to desperate prisons. These cell owners charge whatever the market will bear, and today the market will bear a lot.

Thirty-eight states and the District of Columbia are under court order to reduce overcrowding. Their only alternative to early release is to rent cells from other prisons. Fees are set by a little-known market, with each jail offering bids that are often well above cost. Continue reading “Our Prison Profiteers”

Prisons Aren’t Nursing Homes — The Older Prisoner Crisis

The New York Times
October 9, 1989

BYLINE: By Jonathan Turley; Jonathan Turley, assistant professor of law at Tulane University, directs the Project for Older Prisoners.

On June 7, 1973, a 50-year-old homeless man named Quenton Brown walked into a bread store in Louisiana and, at gunpoint, stole $100 and a 15 cent pie. He then crawled under a nearby house where he remained until the police arrived. After his arrest, the state found that Mr. Brown had an I.Q. of 51 – the intelligence of a three and one-half year old child. After a one day trial, Mr. Brown was given a 30-year sentence without chance of parole. Now 66 years old, Mr. Brown has been at Angola State Penitentiary for 16 years.

Mr. Brown is an example of an emerging national scandal: the failure to release geriatric, low-risk prisoners to make room for younger, more dangerous ones. Even as prisons turn away hundreds of drug dealers because of overcrowding, they continue to hold Prohibition-era felons. Nationwide, there are at least 20,000 inmates over the age of 55. Continue reading “Prisons Aren’t Nursing Homes — The Older Prisoner Crisis”

Get Congress Out of the Page Business

October 4, 2006 New York Times

MEMBERS of Congress have been falling over themselves this week to assign blame to other people in the aftermath of the resignation of their colleague Mark Foley, the Florida Republican who has acknowledged sending improper e-mail messages to a former House page. The fact is, however, that they are all to blame to different degrees for this latest page scandal.

I served as a House leadership page in 1977 and 1978 under the sponsorship of Sidney Yates, an Illinois Democrat. This was during the dark ages when male pages were simply given a salary and told to find their own housing. (Female pages were housed at the Y.W.C.A.) It goes without saying that pages grew up fast and had to learn self-discipline and survival skills.

During my tenure, I was taken by other pages to the home of a man who lived on Capitol Hill — not a member of Congress — and who would give male pages alcohol and drugs. He was clearly a pedophile. On weekends, he brought boys into the woods to drink, shoot guns and pose for semi-nude pictures for his ”collection.” I knew enough to leave, but, given the extent of his ”collection,” some clearly did not.

It later became obvious, however, that some of the greatest dangers lurked inside, not outside, the halls of Congress. In 1983, two members were censured for having had sexual relationships with House pages. Dan Crane of Illinois was defeated after he said he had sex with a 17-year-old female page in 1980. Gerry Studds of Massachusetts refused to apologize for a 1973 relationship with a 17-year-old male page, saying that the page was above the age of consent. Mr. Studds was elected five more times.

Like the rest of society, Congress has always had sexual deviants and sexual predators who cultivated images of themselves as churchgoers with family values. Mr. Foley was a co-chairman of the House Caucus of Missing and Exploited Children and an author of various bills about abuse of children. For a member with dark predilections, the presence of trusting and vulnerable pages can be an irresistible temptation.

There are aspects of the representative-page relationship that can unfortunately provide ample opportunities for sexual predators. Pedophiles often assume fatherly roles, reassuring pages living far from their parents. The subordinate position of pages also fulfills power fantasies for some pedophiles.

What is at risk is something truly unique. Since the 1820’s, pages have been an official part of Congress, but there were probably pages even in the first Congress, in the 1790’s. For these young men and women, being a page is an experience that will resonate with them for the rest of their lives. (It is therefore particularly galling that, as in 1983, the misconduct of members often leads to calls to abolish the page service — removing the temptations rather than deterring the abuses.)

As a 16-year-old page, I served such iconic figures as Barbara Jordan and heard addresses from leaders like Hubert Humphrey. I still remember the first time I had to hoist the flag on top of the House of Representatives, walking over a narrow plank of rotted wood that was probably 200 years old. I stood on top of the windy Capitol holding that flag and having my own ”Titanic” moment: I felt as if there was no limit to this country or its promise. When I sat to catch my breath I noticed a spot near the door where pages had recorded their names for over a century. You could feel a connection that ran for generations, as if pages were part of the Capitol itself.

Pages also serve as reminders to members of Congress of the idealism that first drove them to choose public service. In the hallways of the Capitol they seem like antidotes to the Abramoffs, the Cunninghams and the general stifling cynicism that has taken over government. That is why many of us are so angry with the failure, yet again, to protect our pages.

The 1980’s scandals led to some important reforms on housing and schooling (including the creation of a page dormitory). These reforms, however, fell short of the needed changes.

The most glaring problem is that the House Page Board, which supervises the pages, is made up mostly of members of Congress (the Senate Page Board is composed of only two Senate officials, with no members). The representatives on the board have built-in conflicts of interests in moving against members accused of harassment. Political and social alliances complicate the process and many members would prefer to remain in blissful ignorance when rumors arise. Indeed, some (including the House speaker, Dennis Hastert) are accused of having known about Mr. Foley’s inappropriate messages months ago but allowing the matter to be addressed only informally and without serious action.

The solution is simple: the alumni of the page program need to protect their own ranks. Some of Washington’s most powerful figures in politics, media, business and the law are former pages. They are neither intimidated by members of Congress nor hesitant to drag a member to account. They are protective of pages and have the clout to match their concern.

Congress should create a Congressional Page Board composed of former pages. This board would have the ability to report infractions directly to the respective Ethics Committees for each house, which would be required to investigate and act upon any complaint submitted by the board.

One of the benefits of such a board is that former pages are likely to have a greater connection and rapport with current pages. Indeed, what is unusual about this case is that the page actually came forward — reports suggest that other pages had known of Mr. Foley’s conduct for years. They were wrong in not coming forward with the information. But that’s a difficult thing to do. It might have been easier if the voice on the other end of a telephone line was a former page.

If members are truly outraged, they will help us protect pages from predators in their own ranks. Power and pedophilia are by no means inevitable allies, but it is ridiculous and reckless to ignore their historical relationship. As former pages, we are happy to leave the Foleys, Cranes and Studdses to Congress. But Congress should leave the welfare of the pages to us.

War – What is it Good For

February 15, 2007 Thursday

As Americans have soured on the Iraq war, it’s easy to forget that armed conflict is sometimes the right course of action. In fact, a reflexive chant of ‘war is not the answer’ is a dangerous and amoral way of thinking. A child’s war-themed birthday party — and the ensuing meeting between members of the Greatest Generation and the next generation — brought this point home.

My wife and I recently watched as our three boys marched off to join Easy Company of the Army’s 506th Parachute Infantry Regiment, 101st Airborne Division. Their stoic faces belied their youth — ages 8, 6 and 4 — as they faced the horrors of dropping into Normandy 1944 as part of their best friend’s birthday party. There was plenty of action, of course, but nothing like what the parents would experience a few days later.

It appears that, as casualties and opposition rise with the Iraq war, even Liam Bowman’s 8th birthday party can become fodder in our national debate. Outraged parents complained that we were perverting the minds of children by glorifying war. Yet, there is something to learn from war — as we found out later with a visit to a small Veterans of Foreign Wars hall in rural Maryland. Continue reading “War – What is it Good For”

Reforming the Judicial Confirmation System

May 19, 2004 Wednesday

HEADLINE: Confirmation Process Needs a New Rule: Play Nice at Recess

BODY:
Recently, leading Democrats have accused President Bush of not playing nice. After Senate Democrats blocked confirmation of a number of judicial nominees, Bush sidestepped the Senate and gave them temporary “recess appointments.” Then, Democrats embargoed all judicial confirmations until the president agrees not to use his recess appointment authority. Yesterday the two sides reached an interim deal to break the deadlock (see story, p. 3). But more is needed.

The fight has its roots in a mistake that dates back to the drafting of the Constitution more than two centuries ago. Indeed, this mistake is one of the few oversights by framers, who were ordinarily smart about details. While the framers gave the Senate the sole authority to confirm judicial nominations, they also gave the president the authority to temporarily appoint officials without Senate confirmation when Congress was not in session. Continue reading “Reforming the Judicial Confirmation System”

Ronald Reagan and the Dangers of a Cult of Personality

June 10, 2004 Thursday

HEADLINE: Replacing Giants On Currency Is A Bill Too Far

BODY:
As the nation mourns the death of Ronald Reagan, there are some who are intent on marking his passing with more than heartfelt tributes and tears. A massive memorial on the Mall and other projects are currently being proposed to immortalize this conservative icon. However, two proposals appear to be moving quickly through the halls of Congress: One would replace Alexander Hamilton on the $10 bill, while the other would replace Franklin Delano Roosevelt on the dime.

The move to bump Hamilton and Roosevelt raises serious historical and symbolic questions – but few of these questions are likely to be discussed, let alone answered, during this period of mourning. While many Americans fiercely opposed Reagan and his policies, most of these critics have remained silent in deference to their fellow citizens who embraced Reagan as a political revolutionary.

The problem is that tossing great leaders such as Hamilton and Roosevelt off our currency risks turning a “celebration of life” into a cult of personality. There is no question that Ronald Reagan deserves memorials and praise. However, since he left office, the appetite for memorials among his disciples has been insatiable. Continue reading “Ronald Reagan and the Dangers of a Cult of Personality”

Tom DeLay and Congressional Ethics

November 22, 2004 Monday
HEADLINE: In Congress, Justice DeLayed Is Justice Denied

Power and principle have rarely coexisted well in Washington. However, even in a city that long ago lost the ability to blush, last week’s vote by Republican House Members on Majority Leader Tom DeLay’s (R-Texas) possible indictment left many breathless.

The GOP did away with an ethics rule that would have forced him to resign from his post if he, as some expect, is indicted in Texas for criminal acts related to fundraising. It is only the latest act of collusion in support of DeLay, who has become the Teflon Don of Beltway politics.

It was only a few weeks ago that the Committee on Standards of Official Conduct reprimanded DeLay for violating ethics rules in a different controversy. It was vintage Beltway theater. The reprimand was crafted to avoid any real punishment of DeLay, who immediately claimed a curious victory and thanked the committee for offering “guidance” on such issues.

Now, DeLay faces the possibility of an actual criminal charge in Texas. Close associates of DeLay have been indicted in Austin for illegal solicitations and campaign contributions. DeLay wanted the GOPto take control of the Texas House of Representatives before redistricting. However, it is illegal to solicit or spend corporate funds on political campaigns in Texas. Continue reading “Tom DeLay and Congressional Ethics”