The shifting impeachment positions of Jonathan Turley

George Washington University Law School professor Jonathan Turley, who testified Wednesday before the House Judiciary Committee as an expert witness for Republicans, has a sideline. He loves to dabble in impeachment law, and he has hovered on both sides of the issue.

In 1998 he testified before Congress in the Clinton impeachment hearings, taking the position that “If you decide that certain acts do not rise to impeachable offenses, you will expand the space for executive conduct.” This proposition would surely argue for Trump’s impeachment, but Turley conveniently forgot to mention this in his testimony. 

Striking was Turley’s reaffirmation of something he said in the Clinton impeachment hearing, that a president’s actions didn’t need to break any laws in order to be considered impeachable conduct, a position he stated and then nimbly danced away from in Wednesday’s testimony. Turley didn’t come out so well on that one. 

Turley found it hard to abandon his Clinton testimony. He wrote in a 2014 op-ed for the Washington Post that, “While there’s a high bar for what constitutes grounds for impeachment, an offense does not have to be indictable.” Clinton, of course, was acquitted in the Senate, with senators voting almost invariably along party lines.

Turley has quite a record on impeachment. In 2010, he defended federal judge G. Thomas Porteous Jr. of Louisiana on four articles of impeachment, arising out of charges that he received cash and other items of value from lawyers who had cases before him and had misled the Senate during his confirmation hearings.

Turley didn’t do so well in that case. In an impeachment proceeding led by then-Sen. Jeff Sessions (R-Ala.), Porteous was removed from office by a unanimous vote of those senators present, becoming the eighth federal judge in history and the last in more than two decades to be removed from office.

Interestingly, Porteous was removed not only for taking bribes while a federal judge but also for taking bribes while a state court judge before he assumed federal office. Turley didn’t come out so well on that one, either. 

From a political standpoint, Turley is hard to figure out. He has been all over the lot. 

In 2015 he testified at the confirmation hearing of President Barack Obama’s second attorney general, Loretta Lynch, and used his testimony as a springboard to criticize her predecessor, Eric Holder. In 2017 he testified at the confirmation hearings of Supreme Court Justice Neil M. Gorsuch, stating: “There could not be a better time for the addition of a justice who has a deep understanding and fealty to the original design of our government.” Earlier this year, he testified in favor of the confirmation of William P. Barr as attorney general.

But Turley has been pointedly critical of presidents with an expansive view of executive power. He blasted President George W. Bush for using executive power to authorize sweeping surveillance and terrorist torture. But he also criticized President Obama for making broad claims of executive privilege to throttle congressional inquiry when the Justice Department screwed up in a gun-trafficking investigation. I suppose it depends on whose ox is being gored.

While supporting the Mueller inquiry after Trump fired James Comey as head of the FBI, he also supported the Justice Department investigation into the origins of the FBI’s investigation of the influence of Russia in the 2016 campaign.

House Republicans were delighted with Turley on Wednesday. He testified that he had voted for both Clintons and twice for Obama, so he must be a reliable witness. He was anything but that.

True, he gave Republicans some good soundbites, but when you analyze it, he really didn’t say much other than to criticize the process, the Republican mantra. Basically he conceded that a president who committed “bribery and other high crimes and misdemeanors,” or who abused the powers of his office, should be impeached — but said that, in Trump’s case, impeachment was premature and that the gravity of impeachment compelled that if the House were to proceed, it should do so on a fuller record. 

He apparently forgot, however, that the House has sought a fuller record and been stonewalled by blanket claims of executive privilege and directions to present and former administration officials not to testify or to defy investigative subpoenas.

House Intelligence Committee Chairman Adam Schiff’s (D-Calif.) lawyers brought cases in court to compel compliance and have started to win in the lower courts. But Trump has opted to wait out the time with appeals to the Supreme Court, arguing for blanket privilege outside the legal mainstream of opinion, which should be denied but are unlikely to be denied soon. I assume Professor Turley agrees with the venerable maxim that “justice delayed is justice denied.” 

As a federal prosecutor, I was never satisfied that I knew everything knowable in an inquiry, although I tried hard. But there comes a time when we had to proceed.

The failure to cooperate with a congressional impeachment inquiry undermines the separation of powers sewn into the fabric of our glorious Constitution. The late Justice Antonin Scalia was fond of saying that it is not the bill of rights that guarantees our freedoms, because any banana republic can have a bill of rights; it is the separation of powers that protects us in a self-governing democracy from tyranny. He was right.

Trump has obstructed the congressional impeachment inquiry. Any trier of fact may fairly draw the inference that the testimony of former White House counsel Don McGahn, former national security adviser John Bolton, Secretary of State Mike Pompeo and others would not be favorable to Trump. Even Richard Nixon allowed White House aides such as John Dean and others to testify, and he only took executive privilege over a limited number of documents and tapes, the revelation of which by order of the Supreme Court led to his resignation. Trump’s infamous political mentor Roy Cohn told Trump many decades ago that Nixon should have destroyed the tapes. 

Had Nixon destroyed the tapes in anticipation of a subpoena, it would have been a clear obstruction of justice. Trump has achieved the same result with a wholesale stonewalling of the congressional inquiry.  

Turley’s answer to this is no answer at all: Congress should stay its hand until the Supreme Court has finally spoken on its subpoenas. Then, maybe Trump will resign as Nixon did. Don’t hold your breath.

Professor Turley is what we used to call a “two-handed lawyer,” whose answers are “on the one hand, and then on the other hand,” with a decided tilt toward whoever has asked him to testify. Maybe this is why lawyers are so unpopular. 

James D. Zirin, a retired partner of Sidley Austin, is the author of the recently published book, “Plaintiff in Chief — A Portrait of Donald Trump in 3,500 Lawsuits.” He is a former assistant United States attorney for the Southern District of New York.