The Turley Dilemma

Jonathan Turley, the legal scholar called by Republicans in yesterday's hearing on impeachment before the House Judiciary Committee, gave what was perhaps the best possible defense that the president could have asked for from a credible legal scholar. If we look at the component parts of his argument, we can see the outlines of a dilemma that faces the president, the Republican Party, and by extension the entire country. Broken down, his arguments against impeachment amounted to:

 1)Everyone is angry, including Jonathan Turley's dog. This of course is a classic ad hominem fallacy. The fact that someone is angry does not mean that he or she is wrong. Much of Turley's opening statement dwelt on (what he admitted were) ad hominem irrelevancies, like the fact that he had not voted for Donald Trump. Emotional or ideological bias does not change the state of either the constitution or the facts.

2)The process is rushed. This is a valiant effort at a defense, but is absurd on its face. Much of the appearance of "haste" is generated by the president's unprecedented and clearly unlawful obstruction of Congress. If the White House had honored all of Congress's subpoenas, the investigatory phase of this impeachment might still be underway. The same would be true if Attorney General William Barr had done his duty as an officer of the court in appointing a special prosecutor to pursue this case, rather than acting out of personal allegiance to Donald Trump. Moreover, if (as all of yesterday's scholars affirmed) one of the key purposes of impeachment is to guard the integrity of the electoral process, the time-frame in which impeachment may be effective is necessarily constrained by the electoral calendar. The closer we get to the next election, the more damage a corrupt president may do to the prospects of a free, fair, and valid election. The House thus has every justification to be suspicious of and to forcefully bypass White House efforts at obstruction.

3)More evidence and testimony is needed. This was Turley's strongest argument. Surely everyone would like to hear what John Bolton, Mike Pompeo, Mick Mulvaney, and Rudy Giuliani would have to say under oath. But again, de-legitimizing the impeachment inquiry because of White House obstruction is like setting bank robbers free because they would not hand over the money that would prove their guilt. Turley's argument that the courts must be allowed to weigh in on whether or not the White House is obligated to honor Congressional subpoenas on a case-by-case basis (rather than conceding that the White House's blanket refusal is illegitimate on its face- which is clearly the case) would create a precedent effectively robbing the House of its impeachment power. On that basis any president who was impeached in future could demand that every Congressional subpoena be submitted to judicial review, thus ensuring that hearings would "run out the clock" until the next election. The only reasonable position for a legal scholar to take is that the posture of a White House faced with a Congress exercising its highest Article I power (that of impeachment) must be abject compliance and cooperation- the submission of a subpoena to judicial review under those circumstances should be a "once in a blue moon rarity." Any White House (like the current one) that behaves differently de-legitimizes itself, not Congress.

Most distressingly for the president and the Republican Party, on the substantive issues upon which the witnesses had been called to testify yesterday Turley was in virtual lock-step with the other legal scholars bearing witness. None of the professors had been called to assess the facts of the case, but to explain whether the allegations raised by the Intelligence Committee amounted to an impeachable offense. On this point Turley was clear: if the president did what the report issued by the Intelligence Committee accuses him of doing (attempt to coerce the president of the Ukraine into providing dirt on a political rival), he should be impeached and removed from office.

This is where the country is thrown into a dilemma. The president and the Republican Party do not have a legal leg on which to stand- there is no sense in which anyone can argue that "the facts do not matter in this case." The GOP will not be able to find a credible scholar of constitutional law that will testify under oath that what the president is accused of was not an impeachable offense.

Since the facts are essential, if both sides were operating in good faith, an innocent White House would want total transparency- only a complete and honest accounting of the facts would exonerate the president. The White House would thus scrupulously honor every Congressional subpoena, and hasten the testimony of every witness that could verify the exculpatory evidence clearing the president of this offense.

Because that is not happening, there are only two possibilities. The first is that the president is not innocent, and should be removed from office. The second possibility is that the president is innocent, but is evading investigation because he is faced with a vast conspiracy stretching throughout the Democratic Party, the intelligence services, the news media, the professional bureaucracy, and elements of his own party, dedicated to distorting the facts to fabricate his guilt.

As we listen to the speeches by Republican lawmakers during the course of the impeachment inquiry, we see that this latter charge is precisely the defense of the president toward which they have been compelled. In this respect Professor Turley has done the nation a service, in that he has helped clarify what must be the Republican position if impeachment is to be credibly opposed. The clear principles of the constitution in combination with the raw facts of presidential obstruction leave open only one possible Republican defense: the presidents' accusers are liars, conspirators, (and ultimately, given the degree of contempt for the constitution that such behavior would require) rank traitors to the United States of America.

 We have seen too much evidence of Republican dispositions to doubt whether the GOP will double- and triple down on this defense in the weeks and months ahead. As Republican accusations of perfidy and treason become more strident, it will become increasingly disconcerting to watch duly elected Representatives and Senators accuse their fellow Americans of vicious and unpatriotic conspiracies in ever-more vitriolic and hyperbolic terms. I cannot offer "they know not what they do" as consolation, because that would be a lie. But I can say this- the constitution, and their allegiance to Donald Trump, leaves them no choice.