( Part I is here.)
Professor Turley’s testimony continues…
B. The Nixon Inquiry
The Nixon “impeachment” is often referenced as the “gold standard” for impeachments even though it was not an actual impeachment. President Richard Nixon resigned before the House voted on the final articles of impeachment. Nevertheless, the Nixon inquiry was everything that the Johnson impeachment was not. It was based on an array of clearly defined criminal acts with a broad evidentiary foundation. That record was supported by a number of key judicial decisions on executive privilege claims. It is a worthy model for any presidential impeachment. However, the claim by Chairman Schiff that the Ukrainian controversy is “beyond anything Nixon did” is wildly at odds with the historical record. The allegations in Nixon began with a felony crime of burglary and swept to encompass an array of other crimes involving political slush funds, payments of hush money, maintenance of an enemies list, directing tax audits of critics, witness intimidation, multiple instances of perjury, and even an alleged kidnapping. Ultimately, there were nearly 70 officials charged and four dozen of them found guilty. Nixon was also named as an unindicted conspirator by a grand jury. The convicted officials include former Attorney General John N. Mitchell (perjury); former Attorney General Richard Kleindienst (contempt of court); former Deputy Director of the Committee to Re-elect The President Jeb Stuart Magruder (conspiracy to the burglary); former Chief of Staff H.R. Haldeman (conspiracy to the burglary, obstruction of justice, and perjury); former counsel and Assistant to the President for Domestic Affairs to Nixon John Ehlichman (conspiracy to the burglary, obstruction of justice, and perjury); former White House Counsel John W. Dean II (obstruction of justice); and former special counsel to the President Charles Colson (obstruction of justice). Many of the Watergate defendants went to jail, with some of the defendants sentenced to as long as 35 years. The claim that the Ukrainian controversy eclipses Watergate is unhinged from history.
While the Ukrainian controversy could still establish impeachable conduct, it undermines that effort to distort the historical record to elevate the current record. Indeed, the comparison to the Nixon inquiry only highlights the glaring differences in the underlying investigations, scope of impeachable conduct, and evidentiary records with the current inquiry. It is a difference between the comprehensive and the cursory; the proven and the presumed. In other words, it is not a comparison the House should invite if it is serious about moving forward in a few weeks on an impeachment based primarily on the Ukrainian controversy. The Nixon inquiry was based on the broadest and most developed evidentiary in any impeachment. There were roughly 14 months of hearings – not 10 weeks. There were scandalous tape recordings of Nixon and a host of criminal pleas and prosecutions. That record included investigations in both the House and the Senate as well as investigations by two special prosecutors, Archibald Cox and Leon Jaworski, including grand jury material. While the inquiry proceeded along sharply partisan lines, the vote on the proposed articles of impeachment ultimately included the support of some Republican members who, again, showed that principle could transcend politics in such historic moments.
Three articles were approved in the Nixon inquiry alleging obstruction of justice, abuse of power, and defiance of committee subpoenas. Two articles of impeachment based on usurping Congress, lying about the bombing of Cambodia, and tax fraud, were rejected on a bipartisan basis. While the Nixon impeachment had the most developed record and comprehensive investigation, I am not a fan of the structure used for the articles. The Committee evaded the need for specificity in alleging crimes like obstruction of justice while listing a variety of specific felonies after a catchall line declaring that “the means used to implement this course of conduct or plan included one or more of the following.” Given its gravity, impeachment should offer concrete and specific allegations in the actual articles. This is the case in most judicial impeachments.
The impeachment began with a felony when “agents of the Committee for the Re- election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence.” The first article of impeachment reflected the depth of the record and scope of the alleged crimes in citing Nixon’s personal involvement in the obstruction of federal and congressional investigations. The article included a host of specific criminal acts including lying to federal investigators, suborning perjury, and witness tampering. The second article of impeachment also alleged an array of criminal acts that were placed under the auspices of abuse of power. The article addressed Nixon’s rampant misuse of the IRS, CIA, and FBI to carry out his effort to conceal the evidence and crimes following the break-in. They included Nixon’s use of federal agencies to carry out “covert and unlawful activities” and how he used his office to block the investigation of federal agencies. The third article concerned defiance of Congress stemming from his refusal to turn over material to Congress.
These articles were never subjected to a vote of the full House. In my view, they were flawed in their language and structure. As noted earlier, there was a lack of specificity on the alleged acts due to the use of catch-all lists of alleged offenses.
However, my greatest concern rests with Article 3. That article stated:
“In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”
This Article has been cited as precedent for impeaching a president whenever witnesses or documents are refused in an impeachment investigation, even under claims of executive immunities or privileges. The position of Chairman Peter Rodino was that Congress had the sole authority to decide what material had to be produced in such an investigation. That position would seem to do precisely what the article accused Nixon of doing: “assuming to [itself] functions and judgments” necessary for the Executive Branch. There is a third branch that is designated to resolve conflicts between the two political branches. In recognition of this responsibility, the Judiciary ruled on the Nixon disputes. In so doing, the Supreme Court found executive privilege claims are legitimate grounds to raise in disputes with Congress but ruled such claims can be set aside in the balancing of interests with Congress. What a president cannot do is ignore a final judicial order on such witnesses or evidence.
Putting aside my qualms with the drafting of the articles, the Nixon impeachment remains well-supported and well-based. He would have been likely impeached and removed, though I am not confident all of the articles would have been approved. I have particular reservations over the third article and its implications for presidents seeking judicial review. However, the Nixon inquiry had a foundation that included an array of criminal acts and a record that ultimately reached hundreds of thousands of pages. In the end, Nixon was clearly guilty of directing a comprehensive conspiracy that involved slush funds, enemy lists, witness intimidation, obstruction of justice, and a host of other crimes. The breathtaking scope of the underlying criminality still shocks the conscience. The current controversy does not, as claimed, exceed the misconduct of Nixon, but that is not the test. Hopefully, we will not face another president responsible for this range of illegal conduct. Yet, that does not mean that other presidents are not guilty of impeachable conduct even if it does not rise to a Nixonian level. In other words, there is no need to out-Nixon Nixon. Impeachable will do. The question is whether the current allegation qualifies as impeachable, not uber-impeachable.
C. The Clinton Impeachment.
The third and final impeachment is of course the Clinton impeachment. That hearing involved 19 academics and, despite the rancor of the times, a remarkably substantive and civil intellectual exchange on the underlying issues. These are issues upon which reasonable people can disagree and the hearing remains a widely cited source on the historical and legal foundations for the impeachment standard. Like Johnson’s impeachment, the Clinton impeachment rested on a narrow alleged crime: perjury. The underlying question for that hearing is well suited for today’s analysis. We focused on whether a president could be impeached for lying under oath in a federal investigation run by an independent counsel. There was not a debate over whether Clinton lied under oath. Indeed, a federal court later confirmed that Clinton had committed perjury even though he was never charged. Rather, the issue was whether some felonies do not “rise to the level of impeachment” and, in that case, the alleged perjury and lying to federal investigators concerning an affair with White House intern, Monica Lewinsky.
My position in the Clinton impeachment hearing was simple and remains unchanged. Perjury is an impeachable offense. Period. It does not matter what the subject happened to be. The President heads the Executive Branch and is duty bound to enforce federal law including the perjury laws. Thousands of citizens have been sentenced to jail for the same act committed by President Clinton. He could refuse to answer the question and face the consequences, or he could tell the truth. What he could not do is lie and assume he had license to commit a crime that his own Administration was prosecuting others for. Emerging from that hearing was an “executive function” theory limiting “high crimes and misdemeanors” to misconduct related to the office of the President or misuse of official power. While supporters of the executive function theory recognized that this theory was not absolute and that some private conduct can be impeachable, it was argued that Clinton’s conduct was personal and outside the realm of “other high crimes and misdemeanors.” This theory has been criticized in other articles. This threshold argument, however, would appear again in the Senate trial. Notably, the defenders of the President argued that the standard of “high crimes and misdemeanors” should be treated differently for judicial, as opposed to presidential, officers. This argument was compelled by the fact that the Senate had previously removed Judge Claiborne for perjury before a grand jury and removed Judge Hastings, who had actually been acquitted on perjury charges by a court. I have previously written against this executive function theory of impeachable offenses.
The House Judiciary Committee delivered four articles of impeachment on a straight partisan vote. Article One alleged perjury before the federal grand jury. Article Two alleged perjury in a sexual harassment case. Article Three alleged obstruction of justice through witness tampering. Article Four alleged perjury in the President’s answers to Congress. On December 19, 1998, the House approved two of the four articles of impeachment: perjury before the grand jury and obstruction of justice. In both votes, although Republicans and Democrats crossed party lines, the final vote remained largely partisan. The impeachment was technically initiated on October 8, 1998 and the articles approved on December 19, 1998.
The Senate trial of President Clinton began on January 7, 1999, with Chief Justice William H. Rehnquist taking the oath. The rule adopted by the Senate created immediate problems for the House managers. The rules specifically required the House managers to prove their case for witnesses and imposed a witness-by-witness Senate vote on the House managers. Because the Independent Counsel had supplied an extensive record with testimony from key witnesses, the need to call witnesses like the Nixon hearings was greatly reduced. For that reason, the House moved quickly to the submission of articles of impeachment after the hearing of experts. However, the Senate only approved three witnesses, described by House manager and Judiciary Committee Chairman Henry Hyde as “a pitiful three.” It proved fateful. One of the witnesses not called was Lewinsky herself. Years later, Lewinsky revealed (as she might have if called as a witness) that she was told to lie about the relationship by close associates of President Clinton. In 2018, Lewinsky stated Clinton encouraged her to lie to the independent counsel, an allegation raising the possibility of a variety of crimes as well as supporting the articles of impeachment The disclosure many years after the trial is a cautionary tale for future impeachments, as the denial of key witnesses from the Senate trial can prove decisive.
The Clinton impeachment was narrow but based on underlying criminal conduct largely investigated by an Independent Counsel. The allegation of perjury of a sitting president was supported by a long investigation and extensive record. Indeed, the perjury by Clinton was clear and acknowledged even by some of his supporters. The flaws in the Clinton impeachment emerged from the highly restrictive and outcome determinative rules imposed by the Senate. In comparison, the Trump impeachment inquiry has raised a number of criminal acts but each of those alleged crimes are undermined by legal and evidentiary deficiencies. As discussed below, the strongest claim is for a non-criminal abuse of power if a quid pro quo can be established on the record. That deficiency should be addressed before any articles are reported to the floor of the House.
D. Summary
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.
Ethics Alarms 
Turley’s warning, as I read this, is that the House leadership is so intent on getting something, anything, on DT that it will ride roughshod over long-established rights and analyses that will make it virtually impossible for the executive to function in the future if its standards are applied to later presidents. Not tom mention procedural and evidentiary protections for the press, and Congress. They’re cutting down the forest of laws to pursue the Devil. Straight out of “A Man For All Seasons”.
Having Nadler and Schiff as your primary prosecutors must be similar to having Bozo and Cookie the clowns as your prosecutors. Anything, anything at all, to get a reaction from the breathless peanut gallery and all the thought and sincerity pertaining to it.
Professor Turley had the courage to not so subtly, if only rhetorically, ask…legally, historically, constitutionally what the eff are you doing? Or perhaps more accurately, do you have any idea or concern regarding the implications of what you are doing?
Sadly, we all know the answer; they do know what they’re doing and they have no concern for its impact on the rest of us or the Constitution. Like children perpetually in a candy store, they want what they want and they want it now. Never mind the tantrum is upsetting everyone else and driving them out of the store. So, when the candy of democracy stops arriving because they’ve driven the store out of business, they may reach a point of reckoning, if they ever reach a point of maturity. Unfortunately its doubtful with Nadler and Schiff, two compulsive ideologue liars.
Radical Republican John Logan:
This my theory — hardly my own of course — that we live in reenactments and continuations of the core idea-struggles defined in the Civil War period. Yet the people carrying out these ‘rehearsals’ and ‘enactments’ are unaware that they are doing so.
Note as well the violence of the projection: the assertion that it was the Rebels that caused the loss of ‘hecatombs of slain citizens, and billions of treasure, and an almost ruined country’ when, in fact, the war was concocted by the North for cynical purposes, and these purposes have propelled the Nation forward and into all sorts of endeavors that repeat the core dysfunction.
Even today the force of this lie and this projection still operates! And that is why I say that the country seems to suffer from a profound psychological ailment based in the deliberateness of misperception and the psychic conflict that results from self-deception. Once this gets to a certain point it becomes pathological and cannot be solved through ‘civil discourse’ or reason. I guess at that point things break down into ‘politics by other means’.
If the truth cannot be seen in this instance, and the false declaration is insisted upon against all historical evidence, this provides a kind of structure around which further lies and hypocrisy are accreted. The deranged patriot is born, the false and destructive patriot. And then, when the lie and the mistruth are bound up into patriotic assertions and flag-waving that are nearly religious in tone, the psychic derangement increases decade by decade.
Now, today, the social derangement for a host of different but connected and intertwined reasons, is so extreme that it literally approaches a breach or a breakdown among the population itself. That is, they have become ungrounded from even the concern about the Constitutional structure, or the right to free speech, or any of the core elements that have under-structured the Republic. They do not care! It does not matter. And there the question How did this dumbing down take place? becomes relevant. So many factors and forces colluded in it. Who can name them? Who can organize a critique that is sound and historical?
Psychically, socially, emotively, they can bring “bills of attainder” of any sort, simply on the base of what they *feel* is true, proper and sound.
You could sort of modify John Logan’s statement to fit Trump by speaking of his so-called racist accusations against President Obama. Trump is said to be engaged in ‘treason’ because of his connections with (if only in the idea-realm) and support of those people who assembled in Charlottesville, or tried to rally, to discuss their woes, to voice their concerns. But the very notion that these people could have or do have valid claims to make, that is made to seem like treason and collusion with an enemy. And the fact that they did assemble is evidence of ‘rebellion’.
[I am somewhat reminded of when I read Bob Dylan’s autobiography and him saying that he would go to the NY Public Library and research headlines from the Civil War era to get a sense of the stark conflicts playing out, and how he used these in his songs.]
The crux of Turley’s argument is that the process has not discovered objective proof of the impeachable conduct alleged, assuming arguendo that the conduct alleged actually qualifies in a substantive way for the Constitutional requirement of “…high crimes and misdemeanors.”
Setting aside the intentions of the House Democrats and the Judiciary Committee, this entire episode has become an abuse of process, Kabuki theater designed to produce an impeachment trial. As to why, well, there are surely lots of plausible explanations and even on-the-record statements suggesting answers, but ultimately it doesn’t matter. What does matter is what future Houses will conclude from these proceedings, and I think that is largely driven by what happens in the 2020 election.
If it turns out that the Republicans win big because of the broad rejection by Americans of this entire process, the lesson will be that the wages of orchestrating an inevitably failed impeachment without broad political support from the electorate are punishment at the ballot box. The Republicans learned this lesson in the Clinton impeachment, and you would think the Democrats would have marked it well also.
But many of us suppose this current train wreck is being conducted by the Democratic base, who manifestly loathe Trump and would happily see him executed by firing squad, or hanged. If the Democratic politicians fail to deliver even a pro-forma impeachment of such a loathsome President, the Democrats (perhaps rightly) fear the base will abandon conventional political campaigns and go “full commie,” a situation which will fracture the party and perhaps reduce it to rump status.
So assuming that possibility is what is driving this, the impeachment not only makes sense for the Democrats, but also might be, in a weird and convoluted way, a net positive for the country despite the partisan and almost fait accompli nature of it. By satiating the Democrat base’s blood-lust even with impeachment and a failed removal, the Democrats preserve enough good will to avoid running far-Left candidates for every office in the face of an aroused partisan base, which would likely result in minority status in congress and a loss of the presidency. Keeping the Democrats as a viable check on the Republicans is a desirable outcome, as we have seen how easily power corrupts political parties when they have too much of it.
Unfortunately, I’m not really sure that’s what’s driving it. It could be even more base, a purely partisan political attempt to damage the President in order to weaken him for the election. Turley seems to think this is the case also, reading between the lines, but he works hard to hew close to the facts and avoid the politics. His conclusions are that the facts supporting impeachment don’t rise to any reasonable standard of proof you can name — mostly hearsay and political conclusions by federal career employees, and allegations by political enemies of the president absent any supporting evidence.
Which leaves us with one big question — what will happen in the Senate? Facially, it will also be fait accompli, but much depends upon the rules, if any, that get set, and the consequences thereof. One or two Republican rebels could do exactly the same thing as in the Clinton impeachment, and essentially forbid most exculpatory (in the Clinton case, damning) evidence from being presented, as Turley’s historical ruminations so ominously remind us. Even though there is no realistic chance of an actual conviction, such an eventuality might produce a significant number of Republican defections for conviction, say as many as five or six.
That might give the Democrats exactly what they appear to want — bipartisan political damage delivered in the middle of an election that produces a desirable electoral outcome for the Democrats, and a model for future hostile congressional majorities. That would be very bad for the country, indeed.
Great analysis Glen.
Thanks, Chris.
Very great points that Jonathan Turley made.
Here is an alternate point of view.
http://www.quora.com/Would-it-be-more-advantageous-for-the-Democrats-to-censure-rather-than-impeach-President-Trump-and-why/all_comments/Robert-Real-2?__filter__=all&__nsrc__=1&__sncid__=3639078360&__snid3__=5969427941&comment_id=119411755&comment_type=2
– Milo Aaron
Who the hell is Milo Aaron? And there is no “felony’ in sight.
Milo Aaron is a Quora member who is a professional scientist and military veteran.
http://www.quora.com/profile/Milo-Aaron
If Milo Aaron approaches molecular biology the way he attempts to practice law be very skeptical of any products he might have worked on.
Quora is designed to give educated responses to legitimate questions from those who have subject matter expertise. I have noticed many include some type of description of them being a political scientist beyond their first level qualfications. I quit Quora when it began accepting opinions as fact from people with no real qualifications. In short, you cannot trust the answers on Quora.
One thing Quora did was remove question details.
before, when asking questions, users could add question details to add context.
This feature was removed. Here is Quora in their own words.
http://www.quora.com/q/quora/Quora-the-importance-of-canonical-questions
I have not observed an improvement in thwe quality of questions p[osted. I still see so many ignorant questions regarding gun control.
I remember one question (asked after the change) asking if Trump is guilty of “treason by negligence”
I suggest Jack dedicate a blog post on the ethics of Quora’s decision to eliminate question details.
Turley did nicely address your request for a comparison of this with the other impeachment inquiries.
I have to wonder if the push to impeach on this issue is actually designed by the radical left to scuttle any chance Biden gets the nomination.
The Senate trial will have quite a few star witnesses that will include Joe and Hunter Biden who will have to publically testify and neither is smart enough to outfox a sharp legal cross examination. Even if they come through it without charges, Joe is likely to be smeared so badly his ability to attract donor dollars will be virtually nil. Knocking out Joe opens up a pathway for candidates farther left than Joe to make inroads into the Black community.
Does anyone believe that had Joe run for the nomination in 2016 that HRC would not have brought up Hunter’s involvement with Burisma during the primaries?
I did watch all of Turley’s opening statement but did not spend the entire day watching the 3 anti-Trump shills pontificate on what crimes they want to believe Trump perpetrated. When these people start talking about Trump establishing a monarchy they lose all credibility. It is obvious that they are using the term monarchy as a synonym for dictatorship. They are merely substituting the words in keeping with the period. I am amazed they did not use the term emperor.
Some years ago I sat on our Grand Jury. For reasons unknown to me I was selected as its Foreman.
If the States Attorney had presented us with the the same paucity of evidence as presented by these committees or in evaluating the testimony of such partisan witnesses there is no way I would vote for a true bill of indictment.
The 3 constitutional scholars are clearly mired in their own hatred of Trump.
Incredibly clearly. Karlan essentially admitted it.
Points for honesty, or simply a Freudian slip? Probably the latter.
Thanks for posting this Jack and guilting me into reading the whole thing. Very well done. Maybe you should call the obverse of “Incompetence is unethical” the Jonathan Turley Principle: “Competence in your profession is an essential prerequisite for ethical behavior.” What a treat to see a guy calmly doing what he’s best at when everyone else is running around like chickens with their heads cut off. A brilliant mind and an ethics hero. Delightful.
Did he read the whole article into the record or just give an executive summary on TV.
He read it all, as far as I can figure.
Apparently the GW administration has received a written demand from a student to require Turley to resign for being a “sad excuse of a human being”.
This tells me that where you went to school has virtually no relationship to one’s capacity to learn.
Kind of refreshing Turley is not a Yale Law School or Harvard Law School guy like almost everybody in D.C either in law or elected office. Chicago undergrad and Northwestern Law School. Good for him. Of course Chicago undergrad is probably harder than any Ivy League school.
Great photo! Thank you. Gotta love Fred Thompson working up his Arthur Branch face as counsel to the Senate Watergate guys. Lowell Weicker, Sam Irvin. And the guy from Hawaii, Inoue? Can’t name the rest. The summer of 1974. I remember it well. I babysat our months old daughter and watched almost all the hearings on our little black and white.