Impeachers Deaf to Turley’s Voice of Reason

The biased PC media in the US, Canada, and elsewhere took their sound bites from the leftist law professors whose opinion on Trump’s impeachment is: No Problem. High time. Completely unreported were the reasonable words from the fourth expert. Jonathan Turley wrote a 52 page brief providing the factual basis and historical context for assessing this present process. His advice is sound and wise, and still falls upon deaf ears. His written testimony is available in pdf format here

The synopsis below consists of some of his pointed paragraphs in italics with my bolds.

Twenty-one years ago, I sat here before you, Chairman Nadler, and other members of the Judiciary Committee to testify on the history and meaning of the constitutional impeachment standard as part of the impeachment of President William Jefferson Clinton. I never thought that I would have to appear a second time to address the same question with regard to another sitting president. Yet, here we are. Some elements are strikingly similar. The intense rancor and rage of the public debate is the same. It was an atmosphere that the Framers anticipated. Alexander Hamilton warned that charges of impeachable conduct “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.”

As with the Clinton impeachment, the Trump impeachment has again proven Hamilton’s words to be prophetic. The stifling intolerance for opposing views is the same. As was the case two decades ago, it is a perilous environment for a legal scholar who wants to explore the technical and arcane issues normally involved in an academic examination of a legal standard ratified 234 years ago. In truth, the Clinton impeachment hearing proved to be an exception to the tenor of the overall public debate. The testimony from witnesses, ranging from Arthur Schlesinger Jr. to Laurence Tribe to Cass Sunstein,contained divergent views and disciplines. Yet the hearing remained respectful and substantive as we all grappled with this difficult matter. I appear today in the hope that we can achieve that same objective of civil and meaningful discourse despite our good-faith differences on the impeachment standard and its application to the conduct of President Donald J. Trump.

I would like to start, perhaps incongruously, with a statement of three irrelevant facts. First, I am not a supporter of President Trump. I voted against him in 2016 and I have previously voted for Presidents Clinton and Obama. Second, I have been highly critical of President Trump, his policies, and his rhetoric, in dozens of columns. Third, I have repeatedly criticized his raising of the investigation of the Hunter Biden matter withthe Ukrainian president. These points are not meant to curry favor or approval. Rather they are meant to drive home a simple point: one can oppose President Trump’s policies or actions but still conclude that the current legal case for impeachment is not just woefully inadequate, but in some respects, dangerous, as the basis for the impeachment of an American president.

To put it simply, I hold no brief for President Trump. My personal and political views of President Trump, however, are irrelevant to my impeachment testimony, as they should be to your impeachment vote. Today, my only concern is the integrity and coherence of the constitutional standard and process of impeachment. President Trump will not be our last president and what we leave in the wake of this scandal will shape our democracy for generations to come. I am concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger. If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president.

That does not bode well for future presidents who are working in a country often sharply and, at times, bitterly divided. Although I am citing a wide body of my relevant academic work on these questions, I will not repeat that work in this testimony. Instead, I will focus on the history and cases that bear most directly on the questions facing this Committee. My testimony will first address relevant elements of the history and meaning of the impeachment standard. Second, I will discuss the past presidential impeachments and inquiries in the context of this controversy. Finally, I will address some of the specific alleged impeachable offenses raised in this process. In the end, I believe that this process has raised serious and legitimate issues for investigation. Indeed, I have previously stated that a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet moving forward primarily or exclusively with the Ukraine controversy on this record would be as precarious as it would premature.

We have too many happy warriors in this impeachment on both sides. What we need are more objective noncombatants, members willing to set aside political passion in favor of constitutional circumspection. Despite our differences of opinion, I believe that this esteemed panel can offer a foundation for such reasoned and civil discourse. If we are to impeach a president for only the third time in our history, we will need to rise above this age of rage and genuinely engage in a civil and substantive discussion. It is to that end that my testimony is offered today.

II. A BRIEF OVERVIEW OF THE HISTORY AND MEANING OF THE IMPEACHMENT STANDARD

For the purposes of this hearing, it is Article II, Section 4 that is the focus of our attention and, specifically, the meaning of “Treason, Bribery, or other high Crimes and Misdemeanors.” It is telling that the actual constitutional standard is contained in Article II (defining executive powers and obligations) rather than Article I (defining legislative powers and obligations). The location of that standard in Article II serves as a critical check on service as a president, qualifying the considerable powers bestowed upon the Chief Executive with the express limitations of that office. It is in this sense an executive, not legislative, standard set by the Framers. For presidents, it is essential that this condition be clear and consistent so that they are not subject to the whim of shifting majorities in Congress. That was a stated concern of the Framers and led to the adoption of the current standard and, equally probative, the express rejection of other standards.

Colonial impeachments did occur with the same dubious standards and procedures that marked the English impeachments. Indeed, impeachments were used in the absence of direct political power. Much like parliamentary impeachments, thecolonial impeachments became a way of contesting Crown governance. . . Given this history, when the Framers met in Philadelphia to craft the Constitution, impeachment was understandably raised, including the Hastings impeachment, which had yet to go to trial in England. However, there was a contingent of Framers that viewed any impeachment of a president as unnecessary and even dangerous. Charles Pinckney of South Carolina, Gouverneur Morris of Pennsylvania, and Rufus King of Massachusettsopposed such a provision.

In the end, the Framers would reject various prior standards including “corruption,”“obtaining office by improper means”, betraying his trust to a foreign power,“negligence,” “perfidy,” “peculation,” and “oppression.” Perfidy (or lying) and peculation (self-dealing) are particularly interesting in the current controversy given similar accusations against President Trump in his Ukrainian comments and conduct.

However, the Framers clearly stated they adopted the current standard to avoid a vague and fluid definition of a core impeachable offense. The structure of the critical line cannot be ignored. The Framers cited two criminal offenses—treason and bribery—followed by a reference to“other high crimes and misdemeanors.” This is in contrast to when the Framers included“Treason, Felony, or other Crime” rather than “high crime” in the Extradition Clause ofArticle IV, Section 2. The word “other” reflects an obvious intent to convey that the impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts). This was clearly adeparture from the English model, which was abused because of the dangerous fluidity of the standard used to accuse officials. Thus, the core of American impeachments was intended to remain more defined and limited. It is a discussion that should weigh heavily on the decision facing members of this House.

III. PRIOR PRESIDENTIAL IMPEACHMENTS AND THEIR RELEVANCE TO THE CURRENT INQUIRY

As I have stressed, it is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power. However, although criminality is not required in such a case, clarity is necessary. That comes from a complete and comprehensive record that eliminates exculpatory motivations or explanations. The problem is that this is an exceptionally narrow impeachment resting on the thinnest possible evidentiary record. During the House Intelligence Committee proceedings, Democratic leaders indicated that they wanted to proceed exclusively or primarily on the Ukrainian allegations and wanted a vote by the end of December. I previously wrote that the current incomplete record is insufficient to sustain an impeachment case, a view recently voiced by the New York Times and other sources.

The problem is not simply that the record does not contain direct evidence of the President stating a quid pro quo, as Chairman Schiff has suggested. The problem is that the House has not bothered to subpoena the key witnesses who would have such direct knowledge. This alone sets a dangerous precedent. A House in the future could avoid countervailing evidence by simply relying on tailored records with testimony from people who offer damning presumptions or speculation. It is not enough to simply shrug and say this is “close enough for jazz” in an impeachment. The expectation, as shown by dozens of failed English impeachments, was that the lower house must offer a complete and compelling record. That is not to say that the final record must have a confession or incriminating statement from the accused. Rather, it was meant to be a complete record of the key witnesses that establishes the full range of material evidence. Only then could the body reach a conclusion on the true weight of the evidence—a conclusion that carries sufficient legitimacy with the public to justify the remedy of removal.

The history of American presidential impeachment shows the same restraint even when there were substantive complaints against the conduct of presidents. Indeed, some of our greatest presidents could have been impeached for acts in direct violation of their constitutional oaths of office. . . These efforts reflect the long history of impeachment being used as a way to amplify political differences and grievances. Such legislative throat clearing has been stopped by the House by more circumspect members before articles were drafted or passed. This misuse of impeachment has been plain during the Trump Administration.

I have known many of these members and commentators for years on a professional or personal basis. I do not question their sincere beliefs on the grounds for such impeachments, but we have fundamental differences in the meaning and proper use of this rarely used constitutional device. As I have previously written, such misuses of impeachment would convert our process into a type of no-confidence vote of Parliament. Impeachment has become an impulse buy item in our raging political environment. Slate has even featured a running “Impeach-O-Meter.” Despite my disagreement with many of President Trump’s policies and statements, impeachment was never intended to be used as a mid-term corrective option for a divisive or unpopular leader. To its credit, the House has, in all but one case, arrested such impulsive moves before the transmittal of actual articles of impeachment to the Senate. Indeed, only two cases have warranted submission to the Senate and one was a demonstrative failure on the part of the House in adhering to the impeachment standard. Those two impeachments—and the third near-impeachment of Richard Nixon—warrant closer examination and comparison in the current environment.

Comparison with Three Previous Presidential Impeachments

A comparison of the current impeachment inquiry with the three prior presidential inquiries puts a few facts into sharp relief. First, this is a case without a clear criminal act and would be the first such case in history if the House proceeds without further evidence. In all three impeachment inquiries, the commission of criminal acts by Johnson, Nixon, and Clinton were clear and established. With Johnson, the House effectively created a trapdoor crime and Johnson knowingly jumped through it. The problem was that the law—the Tenure in Office Act—was presumptively unconstitutional and the impeachment was narrowly built around that dubious criminal act. With Nixon, there were a host of alleged criminal acts and dozens of officials who would be convicted of felonies. With Clinton, there was an act of perjury that even his supporters acknowledged was a felony, leaving them to argue that some felonies “do not rise to the level” of an impeachment. Despite clear and established allegations of criminal acts committed by the president, narrow impeachments like Johnson and Clinton have fared badly. As will be discussed further below, the recently suggested criminal acts related to the Ukrainian controversy are worse off, being highly questionable from a legal standpoint and far from established from an evidentiary standpoint.

Second, the abbreviated period of investigation into this controversy is both problematic and puzzling. Although the Johnson impeachment progressed quickly after the firing of the Secretary of War, that controversy had been building for over a year and was actually the fourth attempted impeachment. Moreover, Johnson fell into the trap laid a year before in the Tenure of Office Act. The formal termination was the event that triggered the statutory language of the act and thus there was no dispute as to the critical facts. We have never seen a controversy arise for the first time and move to impeachment in such a short period. Nixon and Clinton developed over many months of investigation and a wide array of witness testimony and grand jury proceedings. In the current matter, much remains unknown in terms of key witnesses and underlying documents. There is no explanation why the matter must be completed by December. After two years of endless talk of impeachable and criminal acts, little movement occurred toward an impeachment. Suddenly the House appears adamant that this impeachment must be completed by the end of December. To be blunt, if the schedule is being accelerated by the approach of the Iowa caucuses, it would be both an artificial and inimical element to introduce into the process. This is not the first impeachment occurring during a political season. In the Johnson impeachment, the vote on the articles was interrupted by the need for some Senators to go to the Republican National Convention. The bifurcated vote occurred in May 1868 and the election was held just six months later.

Finally, the difference in the record is striking. Again, Johnson’s impeachment must be set aside as an outlier since it was based on a manufactured trap-door crime. Yet,even with Johnson, there was over a year of investigations and proceedings related to his alleged usurpation and defiance of the federal law. The Ukrainian matter is largely built around a handful of witnesses and a schedule that reportedly set the matter for a vote within weeks of the underlying presidential act. Such a wafer-thin record only magnifies the problems already present in a narrowly constructed impeachment. The question for the House remains whether it is seeking simply to secure an impeachment or actually trying to build a case for removal. If it is the latter, this is not the schedule or the process needed to build a viable case. The House should not assume that the Republican control of the Senate makes any serious effort at impeachment impractical or naïve. All four impeachment inquiries have occurred during rabid political periods. However, politicians can on occasion rise to the moment and chose principle over politics. Indeed, in the Johnson trial, senators knowingly sacrificed their careers to fulfill their constitutional oaths. If the House wants to make a serious effort at impeachment, it should focus on building the record to raise these allegations to the level of impeachable offenses and leave to the Senate the question of whether members will themselves rise to the moment that follows.

IV. THE CURRENT THEORIES OF IMPEACHABLE CONDUCT AGAINST PRESIDENT DONALD J. TRUMP

While all three acts in the impeachment standard refer to criminal acts in modern parlance, it is clear that “high crimes and misdemeanors” can encompass non-criminal conduct. It is also true that Congress has always looked to the criminal code in the fashioning of articles of impeachment. The reason is obvious. Criminal allegations not only represent the most serious forms of conduct under our laws, but they also offer an objective source for measuring and proving such conduct. We have never had a presidential impeachment proceed solely or primarily on an abuse of power allegation, though such allegations have been raised in the context of violations of federal or criminal law. Perhaps for that reason, there has been a recent shift away from a pure abuse of power allegation toward direct allegations of criminal conduct. That shift, however, has taken the impeachment process far outside of the relevant definitions and case law on these crimes.

It is to those allegations that I would now like to turn. At the outset, however, two threshold issues are worth noting. First, this hearing is being held before any specific articles have been proposed. During the Clinton impeachment hearing, we were given a clear idea of the expected articles of impeachment and far greater time to prepare analysis of those allegations. The House leadership has repeatedly indicated that they are proceeding on the Ukrainian controversy and not the various alleged violations or crimes alleged during the Russian investigation. Recently, however, Chairman Schiff indicated that there might be additional allegations raised while continuing to reference the end of December as the working date for an impeachment vote. Thus, we are being asked to offer a sincere analysis on the grounds for impeachment while being left in the dark. My testimony is based on the public statements regarding the Ukrainian matter, which contain references to four alleged crimes and, most recently, a possible compromise proposal for censure.

Second, the crimes discussed below were recently raised as part of the House Intelligence Committee hearings as alternatives to the initial framework as an abuse of power. There may be a desire to refashion these facts into crimes with higher resonance with voters, such as bribery. In any case, Chairman Schiff and committee members began to specifically ask witnesses about elements that were pulled from criminal cases. When some of us noted that courts have rejected these broader interpretations or that there are missing elements for these crimes, advocates immediately shifted to a position that it really does not matter because “this is an impeachment.” This allows members to claim criminal acts while dismissing the need to actually support such allegations. If that were the case, members could simply claim any crime from treason to genocide. While impeachment does encompass non-crimes, including abuse of power, past impeachments have largely been structured around criminal definitions. The reason is simple and obvious. The impeachment standard was designed to be a high bar and felonies often were treated as inherently grave and serious. Legal definitions and case law also offer an objective and reliable point of reference for judging the conduct of judicial and executive officers. It is unfair to claim there is a clear case of a crime like bribery and simultaneously dismiss any need to substantiate such a claim under the controlling definitions and meaning of that crime. After all, the common mantra that “no one is above the law” is a reference to the law applied to all citizens, even presidents. If the House does not have the evidence to support a claim of a criminal act, it should either develop such evidence or abandon the claim. As noted below, abandoning such claims would still leave abuse of power as a viable ground for impeachment. It just must be proven.

A. Bribery

While the House Intelligence Committee hearings began with references to“abuse of power” in the imposition of a quid pro quo with Ukraine, it ended with repeated references to the elements of bribery. After hearing only two witnesses, House Speaker Nancy Pelosi declared witnesses offered “devastating” evidence that“corroborated” bribery. This view was developed further by House Intelligence Committee Chairman Adam Schiff who repeatedly returned to the definition of bribery while adding the caveat that, even if this did not meet the legal definition of bribery, it might meet a prior definition under an uncharacteristically originalist view: “As the founders understood bribery, it was not as we understand it in law today. It was much broader. It connoted the breach of the public trust in a way where you’re offering official acts for some personal or political reason, not in the nation’s interest.” The premise of the bribery allegations is that President Trump was soliciting a bribe from Ukraine when he withheld either a visit at the White House or military aid in order to secure investigations into the 2016 election meddling and the Hunter Biden contract by Ukraine. On its face, the bribery theory is undermined by the fact that Trump released the aid without the alleged pre-conditions.

However, the legal flaws in this theory are more significant than such factual conflicts. As I have previously written, this record does not support a bribery charge in either century. Before we address this bribery theory, it is important to note that any criminal allegation in an impeachment must be sufficiently clear and recognized to serve two purposes. First, it must put presidents on notice of where a line exists in the range of permissible comments or conduct in office. Second, it must be sufficiently clear to assure the public that an impeachment is not simply an exercise of partisan creativity in rationalizing a removal of a president. Neither of these purposes was satisfied in the Johnson impeachment where the crime was manufactured by Congress. This is why past impeachments focused on establishing criminal acts with reference to the criminal code and controlling case law. Moreover, when alleging bribery, it is the modern definition that is the most critical since presidents (and voters) expect clarity in the standards applied to presidential conduct. Rather than founding these allegations on clear and recognized definitions, the House has advanced a capacious and novel view of bribery to fit the limited facts. If impeachment is reduced to a test of creative redefinitions of crimes, no president will be confident in theirability to operate without the threat of removal. Finally, as noted earlier, dismissing the need to establish criminal conduct by arguing an act is “close enough for impeachment,”is a transparent and opportunistic spin. This is not improvisational jazz. “Close enough”is not nearly enough for a credible case of impeachment.

Under the common law definition, bribery remains relatively narrow and consistently defined among the states. “The core of the concept of a bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised.”

The definition does not lend itself to the current controversy. President Trump can argue military and other aid is often used to influence other countries in taking domestic or international actions. It might be a vote in the United Nations or an anti-corruption investigation within a nation. Aid is not assumed to be“gratuitously exercised” but rather it is used as part of foreign policy discussions and international relations. Moreover, discussing visits to the White House is hardly the stuff of bribery under any of these common law sources. Ambassador Sondland testified that the President expressly denied there was a quid pro quo and that he was never told of such preconditions. However, he also testified that he came to believe there was a quid pro quo, not for military aid, but rather for the visit to the White House: “Was there a‘quid pro quo? With regard to the requested White House call and White House meeting, the answer is yes.” Such visits are routinely used as bargaining chips and not“gratuitously exercised.” As for the military aid, the withholding of the aid is difficult to fit into any common law definition of a bribe, particularly when it was ultimately provided without the satisfaction of the alleged pre-conditions.

Various public corruption and bribery provisions are currently on the books, but the standard provision is found in 18 U.S.C. § 201 which allows for prosecution when “[a] public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or acceptanything of value personally or for any other person or entity, in return for … beinginfluenced in the performance of any official act.” While seemingly sweeping in its scope, the definition contains narrowing elements on the definition of what constitutes “a thing of value,” an “official act,” and “corrupt intent.” The Supreme Court has repeatedly narrowed the scope of the statutory definition of bribery, including distinctions with direct relevance to the current controversy.

In McDonnell v. United States, the Court overturned the conviction of former Virginia governor Robert McDonnell. McDonnell and his wife were prosecuted for bribery under the Hobbs Act, applying the same elements as found in Section 201(a)(3). They were accused of accepting an array of loans, gifts, and other benefits from a businessman in return for McDonnell facilitating key meetings, hosting events, and contacting government officials on behalf of the businessman who ran a company called Star Scientific. The benefits exceeded $175,000 and the alleged official acts were completed. Nevertheless, the Supreme Court unanimously overturned the conviction. As explained by Chief Justice Roberts:

“[O]ur concern is not with tawdry tales of Ferraris, Rolexes, and ballgowns. It is instead with the broader legal implications of the Government’s boundless intrepretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute andthe precedent of this Court.”

The opinion is rife with references that have a direct bearing on the current controversy. This includes the dismissal of meetings as insufficient acts. It also included the allegations that “recommending that senior government officials in the [Governor’sOffice] meet with Star Scientific executives to discuss ways that the company’s products could lower health care costs.” While the meeting and contacts discussed by Ambassador Sondland as a quid pro quo are not entirely the same, the Court refused to recognize that “nearly anything a public official does—from arranging a meeting to inviting a guest toan event—counts as a quo.”

Applying McDonnell and other cases to the current controversy undermines the bribery claims being raised. The Court noted that an “official act” is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy.’ The ‘question, matter, cause, suit, proceeding or controversy’ must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”

The discussion of a visit to the White House is facially inadequate for this task, as it is not a formal exercise of governmental power. However, withholding of military aid certainly does smack of a “determination before an agency.” Yet, that “quo” breaks down on closer scrutiny, even before getting to the question of a “corrupt intent.” Consider the specific act in this case. As the Ukrainians knew, Congress appropriated the $391 millionin military aid for Ukraine and the money was in the process of being apportioned. Witnesses before the House Intelligence Committee stated that it was not uncommon to have delays in such apportionment or for an Administration to hold back money for a period longer than the 55 days involved in these circumstances. Acting Chief of Staff Mike Mulvaney stated that the White House understood it was required to release the money by a certain date absent a lawful reason barring apportionment. That day was the end of September for the White House. Under the 1974 Impoundment Control Act (ICA),reserving the funds requires notice to Congress. This process has always been marked by administrative and diplomatic delays. As the witnesses indicated, it is not always clear why aid is delayed. Arguably, by the middle of October, the apportionment of the aid was effectively guaranteed. It is not contested that the Administration could delay the apportionment to resolve concerns over how the funds would be effectively used or apportioned.

It is certainly fair to question the non-budgetary reasons for the delay in the release of the funds. Yet, the White House was largely locked into the statutory andregulatory process for obligating the funds by the end of September. Even if the President sought to mislead the Ukrainians on his ability to deny the funding, there is no evidence of such a direct statement in the record. Indeed, Ambassador Taylor testified that he believed the Ukrainians first raised their concerns over a pre-condition on August 31 withthe publication of the Politico article on the withholding of the funds. The aid was released roughly ten days later, and no conditions were actually met. The question remains what the “official act” was for this theory given the deadline for aid release. Indeed, had a challenge been filed over the delay before the end of September, it would have most certainly been dismissed by a federal court as premature, if not frivolous.Even if the “official act” were clear, any bribery case would collapse on the current lack of evidence of a corrupt intent.

Finally, the “boundless interpretations of the bribery statutes” rejected in McDonnell pale in comparison to the effort to twist these facts into the elements of that crime. I am not privy to conversations between heads of state, but I expect many prove to be fairly freewheeling and informal at points. I am confident that such leaders often discuss politics and the timing of actions in their respective countries.

If this conversation is a case of bribery, we could have marched every living president off to the penitentiary.

Presidents often use aid as leverage and seek to advance their administrations in the timing or content of actions. The media often discusses how foreign visits are used for political purposes, particularly as elections approach. The common reference to an “October surprise” reflects this suspicion that presidents often use their offices, and foreign policy, to improve their image. If these conversations are now going to be reviewed under sweeping definitions of bribery, the chilling effect on future presidents would be perfectly glacial. The reference to the Hunter Biden deal with Burisma should never have occurred and is worthy of the criticism of President Trump that it has unleashed. However, it is not a case of bribery, whether you are adopting the view of an eighteenth century, or of a twenty-first century prosecutor. As a criminal defense attorney, I would view such an allegation from a prosecutor to be dubious to the point of being meritless.

B. Obstruction of Justice

Another crime that was sporadically mentioned during the House Intelligence hearings was obstruction of justice or obstruction of Congress.

Once again, with only a few days to prepare this testimony and with no public report on the specific allegations, my analysis remains mired in uncertainty as to any plan to bring such a claim to the foundational evidence for the charge. Most of the references to obstruction have been part of a Ukraine-based impeachment plan that does not include any past alleged crimes from the Russian investigation. I will therefore address the possibility of a Ukraine-related obstruction article of impeachment. However, as I have previously written, I believe an obstruction claim based on the Mueller Report would equally at odds with the record and the controlling case law.

The use of an obstruction theory from the Mueller Report would be unsupportable in the House and unsustainable in the Senate. Once again, the lack of information (just weeks before an expected impeachment vote) on the grounds for impeachment is both concerning and challenging. It is akin to being asked to diagnose a patient’s survivability without knowing his specific illness. Obstruction of justice is a more broadly defined crime than bribery and often overlaps with other crimes like witness tampering, subornation, or specific acts designed to obstruct a given proceeding. There are many federal provisions raising forms o fobstruction that reference parallel crimes. Thus, influencing a witness is a standalone crime and also a form of obstruction under 18 U.S.C. 1504. In conventional criminal cases, prosecutions can be relatively straightforward, such as cases of witness intimidation under 18 U.S. 1503.

Of course, this is no conventional case. The obstruction claims leveled against President Trump in the Ukrainian context have centered on two main allegations. First, there was considerable discussion of the moving of the transcript of the call with President Zelensky to a classified server as a possible premeditated effort to hide evidence. Second, there have been repeated references to the “obstruction” of President Trump by invoking executive privileges or immunities to withhold witnesses and documents from congressional committees.

In my view, neither of these general allegations establishes a plausible case of criminal obstruction or a viable impeachable offense. The various obstruction provisions generally share common elements. 18 U.S.C. §1503, for example, broadly defines the crime of “corruptly” endeavoring “to influence, obstruct or impede the due administration of justice.” This “omnibus” provision, however, is most properly used for judicial proceedings such as grand jury investigations,and the Supreme Court has narrowly construed its reach. There is also 18 U.S.C. §1512(c), which contains a “residual clause” in subsection (c)(2), which reads:(c) Whoever corruptly– (1) alters, destroys, mutilates, or conceals arecord, document, or other object, or attempts to do so, with the intent toimpair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction].[emphasis added].

There is no evidence that President Trump acted with the corrupt intent required for obstruction of justice on the record created by the House Intelligence Committee.

Let us start with the transfer of the file. The transfer of the transcript of the file was raised as a possible act of obstruction to hide evidence of a quid pro quo. However, the nefarious allegations behind the transfer were directly contradicted by Tim Morrison, the former Deputy Assistant to the President and Senior Director for Europe and Russia on the National Security Council. Morrison testified that he was the one who recommended that the transcript be restricted after questions were raised about President Trump’srequest for investigations.

Absent additional testimony or proof that Morrison has perjured himself, the allegation concerning the transfer of the transcript would seem entirely without factual support, let alone legal support, as a criminal obstructive act. Most recently, the members have focused on an obstruction allegation centering on the instructions of the White House to current and former officials not to testify due to the expected assertions of executive privilege and immunity. Notably, the House has elected not to subpoena core witnesses with first-hand evidence on any quid pro quo in the Ukraine controversy. Democratic leaders have explained that they want a vote by the end of December, and they are not willing to wait for a decision from the court system as to the merits of these disputes.

In my view, that position is entirely untenable and abusive in an impeachment. Essentially, these members are suggesting a president can be impeached for seeking a judicial review of a conflict over the testimony of high-ranking advisers to the President over direct communications with the President. The position is tragically ironic. The Democrats have at times legitimately criticized the President for treating Article II as a font of unilateral authority. Yet, they are now doing the very same thing in claiming Congress can demand any testimony or documents and then impeach any president who dares to go to the courts. Magnifying the flaws in this logic is the fact that the House has set out one of the shortest periods in history for this investigation—a virtual rocket docket for impeachment. House leaders are suggesting that they will move from notice of an alleged impeachable act at the beginning of September and adopt articles of impeachment based on controversy roughly 14 weeks later.

On this logic, the House could give a president a week to produce his entire staff for testimony and then impeach him when he seeks review by a federal judge.

With such review, the courts stand with Congress on the issue of disclosure and ultimately obstruction in congressional investigations. Moreover, such cases can be expedited in the courts. In the Nixon litigation, courts moved those cases quickly to the Supreme Court. In contrast, the House leaderships have allowed two months to slip away without using its subpoena authority to secure the testimony of critical witnesses. The decision to adopt an abbreviated schedule for the investigation and not to seek to compel such testimony is a strategic choice of the House leadership. It is not the grounds for an impeachment. If the House moves forward with this impeachment basis, it would be repeating the very same abusive tactics used against President Andrew Johnson.

The obstruction allegation is also undermined by the fact that many officials opted to testify, despite the orders from the President that they should decline. These include core witnesses in the impeachment hearings, like National Security Council Director of European Affairs Alexander Vindman, Ambassador William Taylor, Ambassador Gordon Sondland, Deputy Assistant Secretary of State George Kent, Acting Assistant Secretary of State Philip Reeker, Under Secretary of State David Hale, Deputy Associate Director of the Office of Management and Budget Mark Sandy, and Foreign Service Officer David Holmes. All remain in federal service in good standing. Thus, the President has sought judicial review without taking disciplinary actions against those who defied his instruction not to testify.

C. Extortion.

As noted earlier, extortion and bribery cases share a common law lineage. Under laws like the Hobbs Act, prosecutors can allege different forms of extortion. The classic form of extortion is coercive extortion to secure property “by violence, force, or fear.” Even if one were to claim the loss of military aid could instill fear in a country, that is obviously not a case of coercive extortion as that crime has previously been defined. Instead, it would presumably be alleged as extortion “under color of official right.”

Clearly, both forms of extortion have a coercive element, but the suggestion is that Trump was “trying to extort” the Ukrainians by withholding aid until they agreed to open investigations. The problem is that this allegation is no closer to the actual crime of extortion than it is to its close cousin bribery. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right.” The use of anything “of value” today would be instantly rejected. Extortion cases involve tangible property, not possible political advantage.

In this case, Trump asked for cooperation with the Justice Department in its investigation into the origins of the FBI investigation on the 2016 election. As noted before, that would make a poor basis for any criminal or impeachment theory. The Biden investigation may have tangible political benefits, but it is not a form of property. Indeed, Trump did not know when such an investigation would be completed or what it might find. Thus, the request was for an investigation that might not even benefit Trump.

D. Campaign Finance Violation

Some individuals have claimed that the request for investigations also constitutes a felony violation of the election finance laws. Given the clear language of that law and the controlling case law, there are no good-faith grounds for such an argument. To put it simply, this dog won’t hunt as either a criminal or impeachment matter. U.S.C. section30121 of Title 52 states: “It shall be unlawful for a foreign national, directly or indirectly,to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state, or local election.”

However, the Justice Department already reviewed the call and correctly concluded it was not a federal election violation.

This determination was made by the prosecutors who make the decisions on whether to bring such cases. The Justice Department concluded that the call did not involve a request for a “thing of value”under the federal law. Congress would be alleging a crime that has been declared not to be a crime by career prosecutors. Such a decision would highlight the danger of claiming criminal acts, while insisting that impeachment does not require actual crimes.

There is also the towering problem of using federal campaign laws to regulate communications between the heads of state. Any conversation between heads of state are inherently political. Every American president facing reelection schedules foreign trips and actions to advance their political standing. Indeed, such trips and signing ceremonies are often discussed as transparently political decisions by incumbents. Under the logic of this theory, any request that could benefit a president is suddenly an unlawful campaign finance violation valued arbitrarily at $25,000 or more. Such a charge would have no chance of surviving a threshold of motion to dismiss.

E. Abuse of Power

The Ukraine controversy was originally characterized not as one of these forced criminal allegations, but as a simple abuse of power. As I stated from the outset of this controversy, a president can be impeached for abuses of power. In Federalist #65,Alexander Hamilton referred to impeachable offenses as “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

The problem is that we have never impeached a president solely or even largely on the basis of a non-criminal abuse of power allegation. There is good reason for that unbroken record. Abuses of power tend to be even less defined and more debatable as a basis for impeachment than some of the crimes already mentioned. Again, while a crime is not required to impeach, clarity is necessary. In this case, there needs to be clear and unequivocal proof of a quid pro quo. That is why I have been critical of how this impeachment has unfolded. I am particularly concerned about the abbreviated schedule and thin record that will be submitted to the full house. Unlike the other dubious criminal allegations, the problem with the abuse of power allegation is its lack of foundation. As I have previously discussed, there remain core witnesses and documents that have not been sought through the courts. The failure to seek this foundation seems to stem from an arbitrary deadline at the end of December. Meeting that deadline appears more important than building a viable case for impeachment. Two months have been wasted that should have been put toward litigating access to this missing evidence.

The choice remains with the House. It must decide if it wants a real or recreational impeachment. 

Moreover, presidents often discuss political issues with their counterparts and make comments that are troubling or inappropriate. However,contemptible is not synonymous with impeachable. Impeachment is not a vehicle to monitor presidential communications for such transgressions. That is why making the case of a quid pro quo is so important – a case made on proof, not presumptions. While critics have insisted that there is no alternative explanation, it is willful blindness to ignore the obvious defense. Trump can argue that he believed the Obama Administration failed to investigate a corrupt contract between Burisma and Hunter Biden. He publicly called for the investigation into the Ukraine matters. Requesting an investigation is not illegal any more than a leader asking for actions from their counterparts during election years.

It is certainly true that both criminal and impeachment cases can be based on circumstantial evidence, but that is less common when direct evidence is available but unsecured in the investigation. Proceeding to a vote on this incomplete record is a dangerous precedent to set for this country. Removing a sitting President is not supposed to be easy or fast. It is meant to be thorough and complete. This is neither.

F.The Censure Option

Finally, there is one recurring option that was also raised during the Clinton impeachment: censure. I have been a long critic of censure as a part of impeachment inquiries and I will not attempt to hide my disdain for this option. It is not a creature of impeachment and indeed is often used by members as an impeachment-lite alternative for those who do not want the full constitutional caloric load of an actual impeachment. Censure has no constitutional foundation or significance. Noting the use of censure in a couple of prior cases does not make it precedent any more than Senator Arlen Specter’s invocation of the Scottish “Not Proven” in the Clinton trial means that we now have a third option in Senate voting. If the question is whether Congress can pass a resolution with censure in its title, the answer is clearly yes. However, having half of Congress express their condemnation for this president with the other half opposing such a condemnation will hardly be news to most voters. I am agnostic about such extra-constitutional options except to caution that members should be honest and not call such resolutions part of the impeachment process.

V. CONCLUSION

Allow me to be candid in my closing remarks. I get it. You are mad. The President is mad. My Democratic friends are mad. My Republican friends are mad. My wife is mad. My kids are mad. Even my dog is mad . . .and Luna is a golden doodle and they are never mad. We are all mad and where has it taken us?

Will a slipshod impeachment make us less mad or will it only give an invitation for the madness to follow in every future administration?

That is why this is wrong. It is not wrong because President Trump is right. His call was anything but “perfect” and his reference to the Bidens was highly inappropriate. It is not wrong because the House has no legitimate reason to investigate the Ukrainian controversy. The use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense. It is not wrong because we are in an election year. There is no good time for an impeachment, but this process concerns the constitutional right to hold office in this term,not the next.

No, it is wrong because this is not how an American president should be impeached. For two years, members of this Committee have declared that criminal and impeachable acts were established for everything from treason to conspiracy to obstruction. However, no action was taken to impeach. Suddenly, just a few weeks ago, the House announced it would begin an impeachment inquiry and push for a final vote in just a matter of weeks. To do so, the House Intelligence Committee declared that it would not subpoena a host of witnesses who have direct knowledge of any quid pro quo. Instead, it will proceed on a record composed of a relatively small number of witnesses with largely second-hand knowledge of the position. The only three direct conversations with President Trump do not contain a statement of a quid pro quo and two expressly deny such a pre-condition. The House has offered compelling arguments why those two calls can be discounted by the fact that President Trump had knowledge of the underlying whistleblower complaint.

However, this does not change the fact that it is moving forward based on conjecture, assuming what the evidence would show if there existed the time or inclination to establish it. 

This is not a case of the unknowable. It is a case of the peripheral. The House testimony is replete with references to witnesses like John Bolton, Rudy Giuliani, and Mike Mulvaney who clearly hold material information. To impeach a president on such a record would be to expose every future president to the same type of inchoate impeachment. Principle often takes us to a place where we would prefer not to be. That was the place the “Republican Recusants” found themselves in 1868 when sitting in judgment of a president they loathed and despised. However, they took an oath not to Andrew Johnson, but to the Constitution. One of the greatest among them, Lyman Trumbull (R-Ill.) explained his fateful decision to vote against Johnson’s impeachment charges even at the cost of his own career: “Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes … no future President will be safe who happens to differ with the majority of the House and two-thirds of the Senate …I tremble for the future of my country. I cannot be an instrument to produce such a result; and at the hazard of the ties even of friendship and affection,till calmer times shall do justice to my motives, no alternative is left me…”

Trumbull acted in the same type of age of rage that we have today. He knew that raising a question about the underlying crime or the supporting evidence would instantly be condemned as approving of the underlying conduct of a president. In an age of rage, there seems to be no room for nuance or reservation. Yet, that is what the Constitution expects of us. Expects of you. For generations, the seven Republicans who defected to save President Johnson from removal have been heralded as profiles of courage. In recalling the moment he was called to vote, Senator Edmund Ross of Kansas said he “almost literally looked downinto my open grave.” He jumped because the price was too great not to.

Such moments are easy to celebrate from a distance of time and circumstance. However, that is precisely the moment in which you now find yourself. “When the excitement of the hour [has] subsided” and “calmer times” prevail, I do not believe that this impeachment will be viewed as bringing credit upon this body. It is possible that a case for impeachment could be made, but it cannot be made on this record. To return to Wordsworth, the Constitution is not a call to arms for the “Happy Warriors.” The Constitution calls for circumspection, not celebration, at the prospect of the removal of an American president. It is easy to allow one’s “judgment [to be] affected by your moral approval of the lines” in an impeachment narrative. But your oath demands more, even personal and political sacrifice, in deciding whether to impeach a president for only the third time in the history of this Republic.

In this age of rage, many are appealing for us to simply put the law aside and “just do it” like this is some impulse-buy Nike sneaker. You can certainly do that. You can declare the definitions of crimes alleged are immaterial and this is an exercise of politics, not law. However, the legal definitions and standards that I have addressed in my testimony are the very thing dividing rage from reason. . .Both sides in this controversy have demonized the other to justify any measure in defense. Perhaps that is the saddest part of all of this. We have forgotten the common article of faith that binds each of us to each other in our Constitution. However, before we cut down the trees so carefully planted by the Framers, I hope you consider what you will do when the wind blows again . . . perhaps for a Democratic president. Where will you stand then “the laws all being flat?”

Thank you again for the honor of testifying before you today. I am happy to answer any questions that you may have.

Postscript: Turley’s balanced and reasonable advice has also been met with condemnation and distortion. He responds with an article at The Hill Democrats offering passion over proof in Trump impeachment. Excerpt.

In my testimony Wednesday, I lamented that, as in the impeachment of President Clinton from 1998 to 1999, there is an intense “rancor and rage” and “stifling intolerance” that blinds people to opposing views. My call for greater civility and dialogue may have been the least successful argument I made to the committee. Before I finished my testimony, my home and office were inundated with threatening messages and demands that I be fired from George Washington University for arguing that, while a case for impeachment can be made, it has not been made on this record.

In my testimony Wednesday, I stated repeatedly, as I did 21 years ago, that a president can be impeached for noncriminal acts, including abuse of power. I made that point no fewer that a dozen times in analyzing the case against Trump and, from the first day of the Ukraine scandal, I have made that argument both on air and in print. Yet various news publications still excitedly reported that, in an opinion piece I wrote for the Washington Post five years ago, I said, “While there is a high bar for what constitutes grounds for impeachment, an offense does not have to be indictable,” and it could include “serious misconduct or a violation of public trust.”

That is precisely what I have said regarding Trump. You just need to prove abuse of power. My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments and contains conflicts, contradictions, and gaps including various witnesses not subpoenaed. I suggested that Democrats drop the arbitrary schedule of a vote by the end of December and complete their case and this record before voting on any articles of impeachment. In my view, they have not proven abuse of power in this incomplete record.

As I said 21 years ago, a president can still be impeached for abuse of power without a crime, and that includes Trump. But that makes it more important to complete and strengthen the record of such an offense, as well as other possible offenses. I remain concerned that we are lowering impeachment standards to fit a paucity of evidence and an abundance of anger. Trump will not be our last president. What we leave in the wake of this scandal will shape our democracy for generations to come. These “agitated passions” will not be a substitute for proof in an impeachment. We currently have too much of the former and too little of the latter.

One comment

  1. kakatoa · December 6

    Thanks for posting Professor Turley’s latest thoughts on impeachment.

    Before his testimony I saved this quote of his:

    “My point is only this: it is easy to fall in love with lines that appeal to one’s moral approval. In impeachments, one’s feeling about the subject can distort one’s judgment on the true meaning or quality of an argument.”

    Like

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