‘It’s not defensible what the president has done’: Curious argument against Trump’s impeachment given short shrift

George Washington University law professor Jonathan Turley has won praise from civil libertarians by representing “out of the box” defendants, such as whistleblowers and terrorism suspects, in federal court cases.

At Wednesday’s House Judiciary Committee impeachment hearing, Mr Turley took on another difficult case: defending the president of the United States against allegations that he abused his office.

But after seven hours of testimony, many of the Democratic legislators and legal experts who watched him deliver his contrarian take on whether President Donald Trump committed any impeachable offences weren’t impressed.

“I am concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger,” Mr Turley said. “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.”

It was a stark contrast from what he’d said in 1998, when the House debated whether to impeach then-president Bill Clinton.

“While the Senate can decide not to remove a president in the interests of the nation for a variety of reasons… the House should not falter in maintaining a bright line for presidential conduct,” Mr Turley said at the time.

Rep. Karen Bass, D-California, told The Independent that she was “taken aback” by the weakness of Mr Turley’s arguments.

“I thought he was really weak and superficial – I was surprised,” she said.

Rep. Pramilla Jayapal, D-Washington, concurred with her colleague’s assessment, explaining that she “just didn’t find [his arguments] compelling at all.”

“A lot of his arguments were specific to process, but there’s nothing about the actual content of the facts of this 300-page report we just got from the intelligence committee,” she continued, noting that Mr Turley’s testimony today contradicts his Clinton-era statements.

She also took issue with Mr Turley’s suggestion that there is not sufficient evidence in the record to support articles of impeachment.

“We have enormous amounts of evidence... nothing they [Republicans] have seems to be sticking because it’s not defensible what the president has done, and I don’t think Republicans should be trying to defend it. The president has clearly abused his power... the question is: what do we do about it?”

Florida Representative Val Demmings said Mr Turley’s testimony left her “a little confused”.

“It seems like his thought process on holding presidents who abuse their power accountable somewhat.”

California Rep. Ted Lieu singled out one of Mr Turley’s “weak” claims – that the definition of bribery Democrats are using is precluded by a Supreme Court case involving former Virginia governor Robert McDonnell – for ridicule.

“The freezing of military aid… is clearly an official act,” said Mr. Lieu. “Even under his standard, this would qualify as criminal bribery – he’s misstating what the Supreme Court actually found.”

And Rep. Jamie Raskin, D-Maryland – himself a former American University constitutional law professor – called Mr Turley’s argument that the House would abuse its power by impeaching Mr Trump for refusing to produce documents while cases over subpoenas were pending in court “ludicrous”.

“It’s why Trump is losing every case on this!” he said in a text message.

But there was one moment in which Democrats thoroughly agreed with Mr Turley.

When Republican counsel Paul Taylor asked Mr Turley if the impeachments of Richard Nixon and Bill Clinton for obstruction of justice had to do with a request for “false information” put forth by the president, the professor answered in the affirmative.

In fact, Mr Trump did make a request for a staff member to create “false information” in February 2018, when according to the report compiled by former FBI director Robert Mueller, he demanded that then-White House counsel Don McGahn write a false memorandum saying that he’d never asked Mr McGahn to fire Mr Mueller from his job as a special counsel investigating Russian interference in the 2016 US election after the New York Times published a story revealing that Mr McGahn had told Justice Department investigators that Mr Trump had done just that.

Asked whether Mr Turley had inadvertently made a good argument for impeaching Mr Trump, Mr Raskin replied: “I thought the same thing.”

Mr Lieu said it was “a very good point” that Mr Trump had obstructed justice by Mr Turley’s definition by demanding that Mr McGahn falsify evidence.

Another pre-eminent constitutional scholar, Harvard Emeritus Professor Lawrence Tribe, said Mr Turley’s argument had backfired, and had “indeed” made a case for an article of impeachment against Mr Trump.

Mr Tribe also told The Independent that Mr Turley’s claim that the record did not yet support an article of impeachment for defying congressional subpoenas because the courts were considering cases brought by the House to enforce them did not hold water.

“The contemplated Article of Impeachment for blanket defiance of all House subpoenas – unprecedented undifferentiated stonewalling – doesn’t depend in the least on subpoenas working their way through the courts,” he said.

And another impeachment expert – former Watergate deputy special prosecutor Nick Akerman – was even less generous when asked about Mr Turley’s arguments.

“Most of what he says does not comport with the known facts,” Mr Akerman said, concurring with Rep. Lieu’s assessment that Mr Turley had misstated the Supreme Court’s definition of bribery as laid out in the McDonnell case.

“Turley completely misuses the Supreme Court’s opinion in McDonnell that simply requires an official act in exchange for something of value,” he said.

“Here, the official act is Zelensky using his office to announce the investigations, Trump withholding the $391m appropriated by Congress for Ukraine’s defence, and Trump using his official capacity as President to grant or deny Zelensky a meeting at the White House.”

He, too, rejected Mr Turley’s argument against an article of impeachment for obstruction of congress while court cases over the subpoenas were still pending.

“As the DC District court pointed out last week, the proper way to assert executive privilege is to respond to the committee’s subpoena by showing up and then raising executive privilege on a question by question basis,” Mr Akerman said.

“Here, Trump has not validly raised executive privilege for a single document, among the many which were subpoenaed, or on any particular testimony of any of his aides. Instead, he has just instructed his subordinates to ignore the subpoenas and has refused to produce documents.”