Impeachment Expert: ‘If You Impeach a President’ for Going to the Courts, It’s an Abuse of Power

By Melanie Arter | December 4, 2019 | 3:18pm EST
(Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
(Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

( – George Washington University School of Law professor Jonathan Turley, who testified as a constitutional expert for Republicans at Wednesday’s House Judiciary Committee impeachment hearing, warned Democrats against fast-tracking impeachment against President Donald Trump and considering it obstruction for him to ask the court to rule on arguments of executive privilege.

 “If you impeach a president, if you make a high crime and misdemeanor out of going to the courts, it is an abuse of power. It’s your abuse of power. You are doing precisely what you're criticizing the president for doing,” Turley testified.

The professor also took issue with the Democrats’ argument that Trump committed bribery, saying their interpretation of bribery was “flawed” and not what the framers of the Constitution meant.

The statement has been made, not just by these witnesses, but Chairman Schiff and others that this is a clear case of bribery. It's not. And Chairman Schiff said that it might not fit today's definition of bribery, but that it would fit the definition back in the 18th century. Now putting aside Mr. Schiff's turn towards originalism, I think that it might come as a relief to him and his supporters that his career will be a short one, that there is not an originalist future in that argument. The bribery theory being put forward is as flawed in the 18th century as it is in this century. 

The statement that was made by one of my esteemed colleagues is that bribery really wasn’t defined until much later. There was no bribery statute, and that is certainly true, but it obviously had a meaning. That's why they put it in this important standard. Bribery was not this overarching concept to that Chairman Schiff indicated. Quite to the contrary. The original standard was treason and bribery. That led Mason to object that it was too narrow. 

If bribery could include any time that you did anything for personal interest instead of public interest, if you have this overarching definition, that exchange would've been completely useless. The framers didn’t disagree with Mason's view that bribery was too narrow. What they disagreed with was when he suggested maladministration to add to the standard, ‘cause he wanted it to be broader. And what James Madison said is that that’s too broad, that that would essentially create what you might call a vote of no confidence in England. It would basically allow Congress to toss out presidents that they did not like, but once again, we are all channeling the intent of the framers, and that’s always a dangerous thing to do. 

The only more dangerous spot to stand and is between Congress and an impeachment as an academic, but I would offer instead of the words of the framers themselves. You see, in that exchange, they didn’t just say bribery was too narrow, they actually gave an example of bribery, and it was nothing like what was described. When the objection was made by Madison, ultimately the framers agreed, and then Morris, who was referred to earlier, did say we need to adopt the standard, but what was left out was what came afterwards. What Morris said is that we need to protect against bribery, because we don't want anything like what happened with Louis the 14th and Charles the second period. That is the example he gave of bribery was accepting actual money as the head of state. 

So what had happened in that example that Morris gave as his example of bribery, was that Louis the 14th, who was a bit of a recidivist when it came to bribes, gave Charles the second a huge amount of money as well as other benefits, including apparently a French mistress in exchange for the secret treaty of Dover of 1670. It also was an exchange of converting to Catholicism, but that wasn’t some broad notion of bribery. It was quite narrow. So I don't think that dog will hunt in the 18th century, and I don't think it will hunt today. Because if you take a look at the 21st century, bribery is well-defined, and you shouldn’t just take our word for it.

Turley pointed to a U.S. Supreme Court case - McDonald v. United States – saying that you can’t use “a boundless interpretation” of bribery.

You should look to how it’s defined by the United States Supreme Court. In a case called McDonald versus the United States, the Supreme Court looked at a public corruption bribery case. This is a case where gifts were actually received, benefits were actually extended. There was completion. This was not a hypothetical of a crime that was not fulfilled or an action that was not actually taken, the Supreme Court unanimously overturned that conviction – unanimously - and what they said was that you cannot take the bribery crime and use what they called a boundless interpretation. 

All of the justices said that it’s a dangerous thing to take a crime like bribery and apply a boundless interpretation. They rejected the notion, for example, that bribery could be used in terms of setting up meetings and other types of things that occur in the course of a public service career. 

So what I would caution the committee is that these crimes have meaning. It gives me no joy to disagree with my colleagues here, and I really don't have a dog in this fight, but you can't accuse a president of bribery, and then when some of us note that the Supreme Court has rejected your type a boundless interpretation say, well, it’s just impeachment. We really don't have to prove the elements. 

That’s a favorite mantra that is sort of close enough for jazz. Well, this is not improvisational jazz. Close enough is not good enough. If you are going to accuse the president of bribery, you need to make it stick, because you’re trying to remove a duly elected president of the United States. Now it’s unfair to accuse someone of a crime, and when others say, well, those interpretations you are using to define the crime are not valid and to say that they don't have to be valid because this is impeachment, that has not been the standard historically.

Turley said previous impeachments accused former presidents of “proven” and “accepted” crimes. He pointed to the perjury charge raised in the impeachment of then President Bill Clinton, noting that even the Democrats on the House Judiciary Committee and the federal judge all agreed that Clinton had committed perjury.

“In the case of Nixon, the crimes were established. No one seriously disagreed with those crimes. Now Johnson’s the outlier, because Johnson was a trapdoor crime. They basically created a crime knowing that Johnson wanted to replace Secretary of War Stanton, and Johnson did, because they had serious trouble in the cabinet. So they created a trapdoor crime, waited for him to fire the secretary of war, and then they impeached him, but there’s no question that he committed the crime, it's just the underlying statute was unconstitutional,” the professor said. 

Turley warned the committee against accusing Trump of obstruction, and he criticized Democrats for trying to “set the record for the fastest impeachment.”

I’d also caution you about obstruction. Obstruction is a crime also with meaning. It has elements. It has controlling case authority. The record does not establish obstruction in this case. That is what my esteemed colleague said was certainly true. If you accept all of the presumptions, it would be obstruction, but impeachments have to be based on proof, not presumptions. That's the problem when you move towards impeachment on this abbreviated schedule, that has not been explained to me why you want to set the record for the fastest impeachment. Fast is not good for impeachment. Narrow fast impeachments have failed. Just ask Johnson. 

So the obstruction issue is an example of this problem, and here's my concern, the theory being put forward is that President Trump obstructed Congress by not turning over material requested by the committee, and citations have been made to the 3rd article of the Nixon impeachment. Now, first of all I want to confess. I‘ve been a critic of the third article of the Nixon impeachment my whole life. My hair catches on fire every time someone mentions the third article. Why? Because he would be replicating one of the worst articles written on impeachment. Here is the reason why: 

Peter Rodino's position as chairman judiciary was that Congress alone decides what information may be given to it - alone. His position was that the courts have no role in this. And so by that theory, any refusal by a president based on executive privilege or immunities would be the basis of impeachment. That is essentially the theory that’s being replicated today.

Turley said Trump is allowed to go to the courts to settle the issue of executive privilege, and he accused Democrats of trying to sabotage the president by setting “such a short investigation.”

President Trump has gone ... to the courts. He’s allowed to do that. We have three branches, not two. I happen to agree with some of your criticism of President Trump, including that former quote where my colleagues talked about his saying that there’s this Article 2, and he gives this overriding interpretation. I share that criticism. You are doing the same thing with article 1. You’re saying, Article one gives us complete authority that when we demand information from another branch, it must be turned over, or we will impeach you in record time. Now making that worse is that you have such a short investigation. It’s a perfect storm.

You set an incredibly short period, demand a huge amount of information, and when the president goes to court, you then impeach him. Now does that track with what you’ve heard about impeachment? Does that track with the rule of law that we’ve talked about? So on obstruction, I would encourage you to think about this, in Nixon, it did go to the courts, and Nixon lost, and that was the reason Nixon resigned. 

He resigned a few days after the Supreme Court ruled against him in that critical case, but in that case, the court recognized there are executive privilege arguments that can be made. It didn’t say, you had no right coming to us, don't darken our doorstep again. It said we’ve heard your arguments. We’ve heard Congress' arguments, and you know what? You lose. Turn over the material to Congress. What that did for the judiciary is it gave this body legitimacy. 

It wasn’t the Rodino extreme position that only you decide what information can produced. Now recently there are some rulings against President Trump, including a ruling involving don McGahn. Mr. Chairman, I testified in front of you a few months ago. If you recall, we had an exchange, and I encouraged you to bring those actions, and I said that I thought you would win, and you did, and I think it was an important win for this committee, because I don’t agree with President Trump's argument in that case, but that’s an example of what can happen if you actually subpoena witnesses and go to court. 

Then you have an obstruction case, because the court issues an order, and unless they stay that order by a higher court, you have obstruction, but I can't emphasize this enough, and I’ll say it just one more time. If you impeach a president, if you make a high crime and misdemeanor out of going to the courts, it is an abuse of power. It’s your abuse of power. You are doing precisely what you're criticizing the president for doing. We have a third branch that deals with conflicts of the other two branches, and what comes out of there and what you do with it is the very definition of legitimacy.



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