The day after the first impeachment hearing by the House Judiciary Committee, House Speaker Nancy Pelosi
Nancy PelosiHouse Judiciary Committee formally receives impeachment report Overnight Energy: Pelosi vows bold action to counter 'existential' climate threat | Trump jokes new light bulbs don't make him look as good | 'Forever chemicals' measure pulled from defense bill Overnight Health Care — Presented by Johnson & Johnson – House progressives may try to block vote on Pelosi drug bill | McConnell, Grassley at odds over Trump-backed drug pricing bill | Lawmakers close to deal on surprise medical bills MORE (D-Calif.) announced that the committee will move immediately to draft articles of impeachment, with a vote expected within two weeks.
The most discussed crime is now obstruction of Congress, based on the Trump administration seeking to block witnesses. Democratic members in the hearing repeated the words of Judge Ketanji Brown Jackson in rejecting administration claims of immunity like a mantra: “Presidents are not kings.”
The presidential claim of unchecked authority filled members and witnesses with utter disgust. Democratic witness and Harvard law professor Noah Feldman declared that Judge Jackson “held that there is no absolute immunity which would protect a presidential adviser from having to appear before the House of Representatives and testify.” Another Democratic witness, Stanford law professor Pamela Karlan, stated: “So kings could do no wrong, because the king’s word was law. And contrary to what President Trump
Donald John TrumpTrump says he will 'temporarily hold off' on declaring Mexican drug cartels as terror organization House Judiciary Committee formally receives impeachment report Artist behind gold toilet offered to Trump sells banana duct-taped to a wall for 0,000 MORE has said, Article Two (of the Constitution) does not give him the power to do anything he wants.”
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That is manifestly true. Indeed, another Jackson decision went even further in denouncing “the proposition that the executive may assert an unreviewable right to withhold materials from the legislature” as an offense to the very foundations of our constitutional system.
Those, however, were the words of a different Judge Jackson — Amy Berman Jackson — about a different president: Barack Obama
Barack Hussein ObamaTeaching black children to read is an act of social justice Buttigieg draws fresh scrutiny, attacks in sprint to Iowa The shifting impeachment positions of Jonathan Turley MORE. He had withheld evidence in the “Fast and Furious” investigation involving the murder of a federal agent with a gun supplied to criminal gangs by the federal government. He not only withheld witness testimony and evidence but claimed that a court could not even review his order. Sounds a tad monarchial — yet, Democratic members of Congress, including Speaker Pelosi and Judiciary Chairman Jerrold Nadler
Jerrold (Jerry) Lewis NadlerREAD: White House letter refusing to participate in impeachment hearings White House tells Democrats it won't cooperate in impeachment hearings Democrat says he expects to oppose articles of impeachment against Trump MORE (D-N.Y.), overwhelmingly supported Obama in defying Congress. There was no rush to impeach, by Republicans or Democrats.
Thus, you might call this the “Fast and Furious” impeachment. As with the abuse of power allegation, my objection is not with the underlying obstruction claim against Trump but with the record to support it. I am a longtime critic of broad executive privilege claims, and previously testified to the Judiciary Committee to encourage its challenging of President Trump in cases like the one involving former White House counsel Don McGahn.
It comes down, again, to speed. Just a few weeks ago, the House announced it would begin an impeachment inquiry and push for a final vote by the end of December. It further insisted that it would not subpoena key witnesses like former national security adviser John Bolton
John BoltonThe shifting impeachment positions of Jonathan Turley The key impeachment hearings are before an appeals court, not the House Judiciary panel Beyond the myth of Sunni-Shia wars in the Middle East MORE, or litigate other claims over privilege.
The House burned three months without moving on Bolton or others. If it had sought to compel testimony in the Ukraine matter, it could have asked for an expedited ruling — and likely would have a district court order by now. In the Nixon impeachment, the courts expedited review and rendered a series of rulings. The final ruling by the Supreme Court, in United States v. Nixon, was handed down two months after an order by the trial court. (On May 31, 1974, Judge John Sirica ordered Nixon to turn over critical tapes; the case went directly to the Supreme Court, which heard arguments on July 8, 1974, and issued its famous opinion on July 24, 1974.)
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The White House could oppose expediting the cases. However, the rulings and the longer period would greatly reinforce an obstruction article. Instead, Democrats are setting an arbitrary goal to impeach by Christmas. I am concerned about manufacturing impeachment claims by setting artificially short periods for production that practically block judicial review. Some of these conflicts concern communications with national security and legal advisers directly with the president — conversations described by the Supreme Court as the very apex of privilege for presidents.
Even more disturbing is the argument by some that litigating would be a mistake because the Supreme Court’s conservative majority will just side with Trump. However, that would mean the investigation is being curtailed to avoid a ruling in support of Trump. If that were the case, it would mean impeaching a president for maintaining a position you believe the courts would uphold.
In reality, I believe Congress would prevail in many of these fights. The recent ruling by Judge Ketanji Brown Jackson concerned the Mueller investigation and the testimony of Don McGahn; that case is already before the D.C. Circuit. If Democrats may add an obstruction article based on the Mueller investigation, the most viable is the claim involving McGahn. His case can now be expedited — but not if Democrats are hellbent on a “rocket docket” of impeachment within a couple weeks.
Such added support is especially important in a case with obvious defenses. The House is about to impeach Trump for blocking witnesses while, at the same time, saying the record is overwhelming based on the testimony of many of those witnesses. That record is composed of roughly a dozen witnesses, including many who are still part of the executive branch. None of those witnesses have been disciplined or fired for opting to testify. In addition Trump released transcripts of his controversial phone calls, which ordinarily would be privileged, non-public information. Finally, while the obstruction claims against Nixon were made in conjunction with established crimes, the array of crimes alleged against Trump — like bribery, extortion and obstructing justice — lack key elements of those crimes. This impeachment would be based more on obstructing the investigation than the alleged crimes themselves.
Instead of explaining the abbreviated period of investigation, Democrats have falsely claimed that this is actually a longer investigation than the impeachments of Andrew Johnson and Bill Clinton
William (Bill) Jefferson ClintonThe Hill's Morning Report — Pelosi makes it official: Trump will be impeached Impeachment can't wait Turley: Democrats offering passion over proof in Trump impeachment MORE. That is not correct, though in my own testimony before the Judiciary Committee I stressed that, with regard to Johnson, it depends on how you count the days.
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In order to claim that this is actually a longer investigation, Democrats use the date of the passage of impeachment resolutions rather than the underlying investigations to measure time. Thus, the Clinton impeachment inquiry was launched on Oct. 5, 1998, and the articles approved on Dec. 19, 1998. That is just 75 days — but the underlying investigation began in 1994, four years earlier. Even if one only counts the Lewinsky portion of the investigation, it began almost a year before the articles were adopted. The record transmitted to Congress required two vans and 36 boxes.
The record in this case is as short as the timeline. In the hearing, Rep. Sheila Jackson-Lee (D-Texas) quoted me as saying that the record is “wafer-thin” and held up two binders to prove there is an extensive record for impeachment. To be clear, I testified that this record was comparatively not actually wafer-thin. However, the mere fact that Jackson-Lee could hold up the relevant record in two binders is precisely the point. If she were to show the record in the Clinton or Nixon cases, she would have had to drive an 18-wheeler into the committee room.
Of course, none of this matters. Pelosi will get a fast impeachment, and there certainly is no shortage of fury. Yet, “Fast and Furious” amounts to little more than a rush to a failed impeachment.
Jonathan Turley is the chair of public interest law at George Washington University and served as the last lead counsel in a Senate impeachment trial. He testified as a Republican witness in House Judiciary Committee hearing in the Trump impeachment inquiry. Follow him @JonathanTurley.
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