Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” [PART V]

Note the date…

In his final section before concluding, Professor Turley covers other theories being floated as justification for impeachment, and finds them startlingly weak and contrived.

The Hill has Turley’s lament regarding the  the Alliance of Unethical Conduct’s attacks on his thorough and objective dismantling of their coup efforts. (The AUC—that’s the Ethics Alarm shorthand for the Democratic Party-“resistance”-mainstream media alliance to remove Trump from office by any means possible, not Turley’s.)  He writes,

Despite 52 pages of my detailed testimony, more than twice the length of all the other witnesses combined, on the cases and history of impeachment, [Washington Post columnist Dana Milbank] described it as being “primarily emotional and political.” Milbank claimed that I contradicted my testimony in a 2013 hearing when I presented “exactly the opposite case against President Obama” by saying “it would be ‘very dangerous’ to the balance of powers not to hold Obama accountable for assuming powers ‘very similar’ to the ‘right of the king’ to essentially stand above the law.”

But I was not speaking of an impeachment then. It was a discussion of the separation of powers and the need for Congress to fight against unilateral executive actions, the very issue that Democrats raise against Trump. I did not call for Obama to be impeached….

In my testimony Wednesday, I stated repeatedly [as I stated in my testimony during the Clinton impeachment] that a president can be impeached for noncriminal acts…. My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments…. … Democrats have argued that they do not actually have to prove the elements of crimes…. In the Clinton impeachment, the crime was clearly established and widely recognized…. [W]e are lowering impeachment standards to fit a paucity of evidence and an abundance of anger…. 

Writes Ann Althouse in a post yesterday, “it seems to me that the real impeachable offense has always been that Donald Trump got himself elected.”

I wish Prof. Turley had dealt with that, the real justification, in their minds, for the House’s impeachment push.

Back to the professor:

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.”85 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.”87

As shown in cases like United States v. Silver, extortion is subject to the same limiting definition as bribery and resulted in a similar overturning of convictions. Another obvious threshold problem is defining an investigation into alleged corruption as “property.” Blackstone described a broad definition of extortion in early English law as “an abuse of public, justice which consists in an officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due him, or more than is due, or before it is due.”89 The use of anything “of value” today would be instantly rejected. Extortion cases involve tangible property, not possible political advantage.90 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.

The theory advanced for impeachment bears a close similarity to one of the extortion theories in United States v. Blagojevich where the Seventh Circuit overturned an extortion conviction based on the Governor of Illinois, Rod Blagojevich, pressuring then Sen. Barack Obama to make him a cabinet member or help arrange for a high- paying job in exchange for Blagojevich appointing a friend of Obama’s to a vacant Senate seat. The prosecutors argued such a favor was property for the purposes of extortion. The court dismissed the notion, stating “The President-elect did not have aproperty interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).” In the recent hearings, witnesses spoke of the desire for “deliverables” sought with the aid. Whatever those “deliverables” may have been, they were not property as defined for the purposes of extortion any more than the “logrolling” rejected in Blagojevich.

There is one other aspect of the Blagojevich opinion worth noting. As I discussed earlier, the fact that the military aid was required to be obligated by the end of September weakens the allegation of bribery. Witnesses called before the House Intelligence Committee testified that delays were common, but that aid had to be released by September 30th. It was released on September 11th. The ability to deny the aid, or to even withhold it past September 30th is questionable and could have been challenged in court. The status of the funds also undermines the expansive claims on what constitutes an “official right” or “property”:

“The indictment charged Blagojevich with the ‘color of official right’ version of extortion, but none of the evidence suggests that Blagojevich claimed to have an ‘official right’ to a job in the Cabinet. He did have an ‘official right’ to appoint a new Senator, but unless a position in the Cabinet is ‘property’ from the President’s perspective, then seeking it does not amount to extortion. Yet a political office belongs to the people, not to the incumbent (or to someone hankering after the position). Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses, and similar documents, are not ‘property’ in the hands of a  public  agency. That’s equally true of public positions. The President-elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).”

A request for an investigation in another country or the release of money already authorized for Ukraine are even more far afield from the property concepts addressed by the Seventh Circuit.

The obvious flaws in the extortion theory were also made plain by the Supreme Court in Sekhar v. United States, where the defendant sent emails threatening to reveal embarrassing personal information to the New York State Comptroller’s general counsel in order to secure the investment of pension funds with the defendant. In an argument analogous to the current claims, the prosecutors suggested political or administrative support was a form of intangible property. As in McDonnell, the Court was unanimous in rejecting the “absurd” definition of property. The Court was highly dismissive of such convenient linguistic arguments and noted that “shifting and imprecise characterization of

the alleged property at issue betrays the weakness of its case.”94 It concluded that “[a]dopting the Government’s theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress’s choice to penalize one but not the other. That we cannot do.”95 Nor should Congress. Much like such expansive interpretations would be “absurd” for citizens in criminal cases, it would be equally absurd in impeachment cases.

To define a request of this kind as extortion would again convert much of politics into a criminal enterprise. Indeed, much of politics is the leveraging of aid or subsidies or grants for votes and support. In Blagojevich, the court dismissed such “logrolling” as the basis for extortion since it is “a common exercise.” If anything of political value is now the subject of the Hobbs Act, the challenge in Washington would not be defining what extortion is, but what it is not.

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. section 30121 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.”

On first blush, federal election laws would seem to offer more flexibility to the House since the Federal Election Commission has adopted a broad interpretation of what can constitute a “thing of value” as a contribution. The Commission states “’Anything of value’ includes all ‘in-kind contributions,’ defined as ‘the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services.’” 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. The “close enough for impeachment” argument will only undermine the legitimacy of the impeachment process, particularly if dependent on an election fraud allegation that itself is based on a demonstrably slipshod theory. Continue reading

Cultural And Societal Poison, Pumped Into Our National Bloodstream

When I worked for the U.S. Chamber of Commerce in the 1970s, I was once dispatched to an Amway convention at the Atlanta Omni  to speak to the packed arena about carious Chamber citizen activism projects. Right before I was scheduled, the Amway “Diamond” hosting the thing (it was so strange and cult-like that “thing” is the best I can come up with this early in the morning) rallied the glassy-eyed crowd with a speech the likes of which I had never heard before. Among the crazy assertions he made to cheers and  cries of “Amen!” was that Jimmy Carter, then President, was card-carrying Communist and an agent of the Soviet Union, preparing as he spoke to turn over America to the Russians He also said, Joe McCarthy-like, that he had authentic documents to prove this.

As I sat in the wings, my mind raced to determine what I should do. I did not want to endorse or support what I had just heard in any way, but I also was on an assignment from my boss, who, I was and am quite sure, would have been just as horrified by what I had just heard as I was. Amway’s founders, Jay Van Andel and Rich De Vos (yes, father of that De Vos) were Chamber board members and big contributors to the Chamber’s PAC. Nothing I was promoting there was sinister. Still, I seriously considered leaving immediately, or even using my huge radio mic to denounce what I had just heard as outrageous lies, at least until I was brought down in a hail of bullets, or torn limb from limb by the infuriated mob.

In the end, I gave a shortened version on my planned speech—the crowd was very receptive—and got the hell out of there. When I returned to D.C., I announced that I would not appear at any more Amway conventions, or, for that matter, any John Birch Society meetings or KKK rallies, and my wishes were respected. I remained disturbed by the incident, and especially by the extremist bile that was apparently circulating quietly among the public that was barely hinted at in what was then naively called the “respectable media.”

Sunday, I read a column by Thomas Friedman, a three-time Pulitzer Prize winner and best-selling author who writes for the New York Times. In a column called Iran Is Crushing Freedom One Country at a Time,”  this supposedly mainstream and eminently respectable pundit wrote, Continue reading

Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” [PART IV]

The press wanted Andrew Johnson impeached, too…

This section of Turley’s masterpiece covers the various “obstruction of justice” claims. The conclusion:

“Basing impeachment on this obstruction theory would itself be an abuse of power. . . by Congress. It would be an extremely dangerous precedent to set for future presidents and Congresses in making an appeal to the Judiciary into “high crime and misdemeanor.”

Boy, Turley did a terrific job…

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 of obstruction 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.

In the Mueller report, Assistant Attorney General found no cognizable case was presented for an allegation of obstruction of justice. Many members of this Committee heralded the selection of Rosenstein as a consummate and apolitical professional who was responsible for the appointment of the Special Counsel. He reached this conclusion on the record sent by Mueller and, most importantly, the controlling case law. As with the campaign finance allegation discussed in this testimony, an article based on obstruction in the Russian investigation would seek the removal of a President on the basis of an act previously rejected as a crime by the Justice Department. Many of us have criticized the President for his many comments and tweets on the Russian investigation. However, this is a process that must focus on impeachable conduct, not imprudent or even obnoxious conduct. Continue reading

Sackler, Tufts, Cancel Culture And The 100th Rationalization: The Reverse Ruddigore

I have been waiting to find the ideal 100th Rationalization, officially #70 (there are 30 sub-rationalizations on the EA Rationalizations list. It’s “The Reverse Ruddigore,” the equally valid opposite of Rationalization #21. Ethics Accounting, or “I’ve earned this”/ “I made up for that”:

 You cannot earn the right to act unethically by depositing a lot of ethical deeds in the imaginary ethics bank, nor can unethical conduct be erased by doing good for someone else. The illusion that one can balance the ethics books this way is referred to on the Ethics Alarms blog as “the Ruddigore Fallacy.”  Nobody earns the right to be unethical, not even once, no matter how exemplary their conduct. An unethical act is just as unethical, whether it is performed by a saint, a hero, or a villain.

“Ruddigore,” for those of you sadly unaware of the joys of Gilbert and Sullivan, is the unjustly under-rated work by the Victorian geniuses that involved an ancient curse on a family that required a Baronet of Ruddigore to perform a crime a day or die in agony, courtesy of his re-animated ancestors, who otherwise hang around, literally, as portraits in a haunted gallery. One member of the family who has inherited the curse, Sir Despard, believes that he has found a loophole:

“I get my crime over the first thing in the morning, and then, ha! ha! for the rest of the day I do good – I do good – I do good! Two days since, I stole a child and built an orphan asylum. Yesterday I robbed a bank and endowed a bishopric. To-day I carry off Rose Maybud and atone with a cathedral! This is what it is to be the sport and toy of a Picture Gallery!”

Looking back on past posts, I laid the groundwork for #70 when I condemned the decision of Walt Disney World to remove Bill Cosby’s bust from the its Academy of Television Arts and Sciences Hall of Fame of Fame:

[L]ast I heard Bill Cosby was still recognized as a major trailblazer in stand-up, TV comedy, and television integration (remember “I Spy”?), an important positive cultural force for race relations and black community self esteem, and a spectacularly talented comedian with a unique voice and presence. None of that has changed. Those were the achievements that prompted Cosby’s bust’s inclusion in Disney’s Academy of Television Arts and Sciences Hall of Fame Plaza, along with celebrities such as Lucille Ball and Oprah Winfrey who, like the Cos, have been inducted into the Television Academy Hall of Fame. O.J. Simpson is still honored in the College Football Hall of Fame, because he was one of the greatest college stars ever. His post-career hobby as a murderer, like Bill’s extra-curricular activities as a serial rapist, have nothing to do with the honor, just as Cosby earned and still deserves, his honor for what he achieved on stage and screen.

Subsequent bad acts no more cancel out past good ones than Sir Despard’s cathedral would make up for kidnapping sweet Rose Maybud. The current “Cancel Culture,” however, holds otherwise. In the latest episode, Tufts University announced today that it will strip the Sackler name from the buildings and programs on its medical campus, after a report censured the school for its relationship with the family whose drug company made OxyContin, the opioid blamed for hundreds of thousands of deaths nationwide. Continue reading

Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” [PART III]

(Part I is here; Part II, here.)

In this section of his testimony, Turley deals with the Ukraine phone call that is supposedly impeachable. Here is the key paragraph:

“Again, the issue is not whether these comments are correct, but whether they are corrupt. In my view, there is no case law that would support a claim of corrupt intent in such comments to support a bribery charge. There is no question that an investigation of the Bidens would help President Trump politically. However, if President Trump honestly believed that there was a corrupt arrangement with Hunter Biden that was not fully investigated by the Obama Administration, the request for an investigation is not corrupt, notwithstanding its inappropriateness. The Hunter Biden contract has been widely criticized as raw influence peddling. I have joined in that criticism. For many years, I have written about the common practice of companies and lobbyists attempting to curry favor with executive branch officials and members of Congress by giving windfall contracts or jobs to their children. This is a classic example of that corrupt practice.”

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

Continue reading

Dear Progressives: The Failure Of Reality To Conform To Your Biases And Desires Does Not Make It Unethical

Let us stipulate: the failure of Kamala Harris to thrive in the race for the Democratic nomination for President was not because Democratic voters are racist or sexist.  It is because she was a lousy candidate from the beginning. Checking off boxes is never enough, thank heaven. She is a woman, “of color,” a lawyer and a Senator from a large and powerful state. To top it all off, Harris is relatively young, and attractive. Perfect!

Except it was easy to see that she was an empty suit with a penchant for saying stupid things, often things she couldn’t possibly believe and that contracdicted her record as a prosecutor. She said that it was “outrageous” that the Trump administration wanted to deport illegal immigrants who had committed crimes. [Me: “It is not and cannot be “outrageous” to say that any illegal immigrant, criminal or not, qualifies for deportation. To maintain otherwise is to say that the United States cannot enforce its immigration laws, and not only that, it is “outrageous” to enforce the laws. Is that the position of the Democratic Party? “] She said that she supported legalizing pot because it brought people “joy.” You know, like heroin, rape, and child molesting. She said, when Joe Biden correctly pointed out that a President could not ban “assault weapons” by executive order, she responded, “Well, I mean, I would just say, hey, Joe, instead of saying, no, we can’t, let’s say yes, we can.”  Horrified when she saw the exchange,, law prof Ann Althouse wrote, “The transcript cannot convey the feeling and expression in Kamala Harris’s  [ response]. It is so awful, so lightweight and dismissive of constitutional law (and without any of the dignity of constitutional critique.”

There are plenty more catalogued here, and it is hardly exhaustive. Harris flopped because she proved beyond a shadow of a doubt that she was unqualified to be a Senator, much less a President. As if that wasn’t enough, she couldn’t manage her campaign, which had disintegrated into finger-pointing and defections. When Barack Obama was challenged in 2008 over his lack of leadership experience, he cited the success of his campaign. Slim indeed, but  Harris couldn’t even say that.

As the writing on the wall began to be undeniable, Harris stooped to race- and gender baiting, expressing doubts as to whether a “woman of color” could be elected President (in such a racist, sexist nation, she implied.) No, Senator it’s just that you can’t be elected.

Her polling in free-fall, Harris dropped out today. What was the reaction of the Left’s pundits? Why, outrage over that racism and sexism of the public, of course: Continue reading

A Cautionary Tale: The Corruption Of Post Columnist Colbert King, Part I

Colbert King is 80 now, but he is still a regular columnist with the Washington Post. As a recent column demonstrated, he has finally fallen prey to the Post culture and no longer is what he once was: the rare pundit, in his case, a liberal one, who could be counted upon for fairness and integrity regardless of the topic. The one-two punches of Barack Obama and Donald Trump showed how cognitive dissonance and confirmation bias can corrupt the best of us, and make no mistake about it, King was once one of the best.

Although he is an African-American, he stood out for decades among his corruption- enabling black colleagues in consistently calling out the D.C. government’s corrupt leadership—notably Marion Barry but many others—on their arrogantly dishonest, venal and untrustworthy practices and attitudes.

Then Barack Obama happened. I listened in surprise on a local Sunday talking head show as King defended Barack Obama’s quiet, decades long assent to the black liberation (that is, anti-white, anti-American rantings of Reverend Wright, Obama’s “spiritual mentor.” Were these rationalizations I heard Colbert King uttering? King reliably mocked rationalizations, and yet here he was using them, notably “Everybody does it,” to defend  a black Presidential candidate’s approval and association with a black racist and demagogue.

Once Obama was elected, King got worse. Not only could Obama do no wrong, but those who criticized were enemies in his eyes; worse, King treated Obama’s appointees and cronies with similar reverence, a complete reversal from his approach to the  parade of incompetent or criminal black politicians in D.C.  Notably, he defended Obama “wing man” Eric Holder, the racialist Attorney General, when he was refusing to comply with a legitimate Congressional inquiry into the Justice Department’s Fast and Furious fiasco. His excuses for Holder and his attacks on Republicans were so redolent of partisan hackery that in 2012 I was moved to write my one-time Ethics Hero the “Open Letter”: Continue reading