John Locke Update / Research Brief

The House Impeachment Inquiry: A Guide for the Perplexed

posted on in Law & Regulation, Legal Update
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Back when the impeachment inquiry was still in the hands of the House Intelligence Committee, I got an email message from an old friend asking, “What do you make of all this?” In reply, I said:

To be honest, I find it all very confusing. These days I mostly get my news through the legal blogosphere. Most mainstream and progressive bloggers hate Trump and think he should be both impeached and imprisoned, which, I suppose, is to be expected. What really confuses me is the fact that conservative and libertarian bloggers are so polarized. Some think the impeachment inquiry, like the Russian collusion investigation before it, constitutes an attempted coup by the “deep state.” Others hate Trump just as much as the lefties, and agree that he ought to be impeached and imprisoned. 

My best guess—and it’s just a guess—is that they’re all suffering from Trump derangement syndrome and that the truth is somewhere in between, i.e., Trump has behaved badly, but no more badly than any other president. He’s just much more crass and open about his bad behavior than a typical politician, which makes him an easy target for a Washington establishment that feels disrespected and threatened.

Since then, I’ve come across some legal commentary that seems reasonable rather than deranged, and that commentary has tended to confirm my original guess. For the benefit of any readers who have also been feeling confused, I’m going to provide links to some of that commentary in today’s Legal Update.

For me, the most helpful piece has been the written statement that George Washington University Law Professor Jonathan Turley submitted to the House Judiciary Committee when he testified on December 4th. Compared to the other legal scholars giving testimony that day, and compared to most of the committee members, Turley came across as the only adult in the room. The opening passage from his Written Statement shows why:

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 with the 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.

The statement is 53 pages long with more than 100 footnotes. It provides an overview of the history and meaning of the impeachment standard and a review of the three prior presidential impeachment inquiries: of Andrew Johnson in 1868, or Richard Nixon in 1974, and Bill Clinton in 1998. After providing this background information, it discusses, in detail, all the theories of impeachable conduct that were then on the table, including the two that the House Democrats have decided to include in the articles of impeachment: abuse of power and obstruction of justice. In his conclusion, Turley says:

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. The military aid was released after a delay that the witnesses described as “not uncommon” for this or prior Administrations. 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.

Because providing this carefully researched and carefully reasoned analysis to the House Judiciary Committee, Turley has been the object of private death threats and public vilification, but that just shows how deranged the debate has become for many people. Far from being a partisan hit job, as Turley’s detractors claim, his statement is as scholarly and dispassionate a summary and evaluation of the impeachment inquiry as one could hope to see. I urge everyone interested in the topic to read the whole thing and watch the video of his testimony too.

For the record, other law professors have written dispassionately about the impeachment inquiry and have reached conclusions similar to Turley’s. See, for example, recent pieces at Lawfare, the Volokh Conspiracythe Atlantic by Josh Blackman, and this piece at The Originalism Blog by Michael Ramsey. They are all worth reading. But if you only have time for one thing, read Turley’s statement. We’re lucky to have people like him providing a calming influence while we wait for Trump derangement syndrome to run its course.

Jon Guze is Senior Fellow in Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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