Arguing Over Impeachment - The Defense


Continuing the discussion from yesterday over how to analyze arguments for and against impeachment, Jonathan Turley, Professor of Law at George Washington University, provided expert testimony last week before the House committee investigating the President. Like Professor Karlan whose argument we analyzed last time, Professor Turley is a distinguished legal scholar with wide-ranging experience. Unlike Karlan, however, Turley is more concerned over the legitimacy of the impeachment process, rather than its target.


Not in Anger, nor in Haste


Drawing from the same legal, constitutional and political history mentioned by all four of the legal experts testifying before Congress, Turley sees principles laid down by the Founders being violated by those who have brought impeachment proceedings against the President, rather than by the President himself.


In his analysis, the framers meant impeachment to be a deliberate, sober process, not a hasty one done in anger. He also expressed tremendous concern that watering down the requirements for impeaching a president could set precedent that could impact every chief executive in the future.


The Defense


The opening statement I used as the basis for a structured argument appears at the end of this piece and you can read the transcript of the entire hearing or watch all or part of it on video. Here’s my translation of what Professor Turley had to say:


Premise 1: The framers of the Constitution set limits on what constituted impeachable offenses to avoid political abuse of Congress’ impeachment powers or impeachment proceedings driven by anger or political rancor.

Premise 2: The speed of the current impeachment process means impeachment is proceeding based on an incomplete and inadequate record.

Premise 3: The current impeachment process is the first in history where there is considerable debate and not adequate compelling evidence of the commission of a crime.

Premise 4: A speedy impeachment process proceeding without adequate compelling evidence of the commission of a crime indicates the process is being driven by anger or partisan rancor, rather than the rule of law.

Premise 5: The current impeachment process will set standards that can be applied to impeachment proceedings against sitting presidents in the future.


Conclusion: The current impeachment process represents the political abuse of impeachment powers the framers of the Constitution warned about which threatens to create a new, lower standard that can be used to impeach any president in the future.


Like last time, I made an effort to translate Turley’s prose into a valid argument, one in which accepting the premises requires you to accept the conclusion. This was done not out of generosity to particular points view, but because forcing an argument into a valid structure often reveals issues with one or more of the premises.


Success or Failure?


As noted previously, for an argument to succeed it must be valid (the premises must lead to the conclusion) and sound (the premises of a valid argument must be true, or at least something a reasonable person would accept). So what should we make of the premises of Turley’s valid argument?


Since it only takes one bad premise to bring down an entire argument, we could zero in on Premise #2 and claim that the speed of this year’s hearing says more about the availability of information, information technology and experts than it does about undue haste. However, as Turley notes, the Andrew Johnson impeachment that took place in the 19th century was also carried out very quickly compared to two similar inquiries in the 20th century. This would indicate speed has more to do with the desire of investigators to move fast than any technological or legal advancements. So Premise #2 might not be the best hill to die on.


Attacking Premise #3 might be more promising, especially if one can make the case that there is compelling evidence of the commission of a crime, arguing that the “considerable debate” we’re seeing over that issue grows out of a desire by the President’s supporters to obscure that evidence.


In order to smash Turley’s premise, however, one would need to clearly define which specific crime has been committed, how that crime fits the definition of an impeachable offense, then confirm sufficient evidence proving such a well-defined and well-understood crime has been committed. Taking as much time as is needed and proceeding without hostility or rancor would also bring into question other premises in his argument.


More Agreement?


While the arguments of Karlan and Turley seem to contradict one another, they actually confirm important areas of mutual agreement. We want to live in a nation where foreign powers don’t interfere with our elections and candidates for high office don’t try to manipulate the process or betray their duties for personal benefit. We also want to live in a nation where leaders don’t go after their opponents based on anger or short-circuit important Constitutional safeguards. If you read the two arguments in their structured forms, you'll notice that these are all premises not worth challenging since they actually represent points we agree on.


While there may never be complete overlap between one party that says “guilty” and another that says “innocent,” skillful argumentation by both parties coupled with the logic-checking process has helped us unearth important truths even those in opposite political camps believe, reflecting values we all have in common.



Jonathan Turley Opening Statement


Thank you Chairman Adler, Ranking Member Collins, members of the judiciary committee. It’s an honor to appear before you today to discuss one of the most consequential functions you were given by the framers, and that is the impeachment of a president of the United States. 21 years ago, I sat before you, Chairman Adler, and this committee to testify at the impeachment of President William Jefferson Clinton. I never thought that I would have to appear a second time to address the same question with regard to another sitting president. Yet here we are.


The elements are strikingly similar. The intense rancor and rage of the public debate is the same. It’s the atmosphere that the framers anticipated. The stifling intolerance of opposing views is the same. I’d like to start therefore, perhaps incongruently, by stating an irrelevant fact. I’m not a supporter of President Trump. I voted against him.


My personal views of President Trump are as irrelevant to my impeachment testimony as they should be to your impeachment vote. President Trump will not be our last president, and what we leave in the wake of this scandal will shape our democracy for generations to come. I’m concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger. I believe this impeachment not only fails to satisfy the standard of past impeachments, but would create a dangerous precedent for future impeachments.


My testimony lays out the history of impeachment from early English cases, to colonial cases, to the present day. The early impeachments were raw political exercises using fluid definitions of criminal and non-criminal acts. When the framers met in Philadelphia, they were quite familiar with impeachment and its abuses, including the Hastings case, which was discussed in the convention, a case that was still pending for trial in England.


Unlike the English impeachments, the American model was more limited, not only in its application did judicial and executive officials, but its grounds. The framers rejected a proposal to add mail administration because Madison objected that so vague a term would be equivalent to a tenure during the pleasure of the Senate.


In the end, various standards that had been used in the past were rejected. Corruption, obtaining office by improper means, betraying the trust to a foreign power, negligence, perfidy, peculation and oppression. Perfidy or lying and peculation, self-dealing are particularly relevant to our current controversy. My testimony explores the impeachment cases of Nixon, Johnson and Clinton.


The closest of these three cases is to the 1868 impeachment of Andrew Johnson. It is not a model or an association that this committee should relish. In that case, a group of opponents of the president’s called the Radical Republicans created a trapdoor crime in order to impeach the president. They even defined it as a high misdemeanor.


There was another shared aspect, besides the atmosphere of that impeachment and also the unconventional style of the two presidents, and that shared element is speed. This impeachment would rival the Johnson impeachment as the shortest in history, depending on how one counts the relevant days. Now, there are three commonalities when you look at these past cases. All involved established crimes. This would be the first impeachment in history where there would be considerable debate, and in my view, not compelling evidence of the commission of a crime.


Second is the abbreviated period of this investigation, which is problematic and puzzling. This is a facially incomplete and inadequate record in order to impeach a president. Allow me to be candid in my closing remarks because we have limited time. We are living in the very period described by Alexander Hamilton, a period of agitated passions.


I get it, you’re mad. The president’s mad. My Republican friends are mad. My Democratic friends are mad. My wife is mad, my kids are mad. Even my dog seems mad, and Luna’s a golden doodle and they don’t get mad. So we’re all mad. Where’s that taken us?


Will and a slip shot impeachment make us less mad? Will it only invite an invitation for the madness to follow every future administration? That is why this is wrong. It’s not wrong because President Trump is right. His call was anything but perfect. It’s not wrong because the house has no legitimate reason to investigate the Ukrainian controversy. It’s not wrong because we’re in an election year. There is no good time for an impeachment. No, it’s wrong because this is not how you impeach an American president.


This case is not a case of the unknowable. It’s a case of the peripheral. We have a record of conflicts, defenses that have not been fully considered, un-subpoenaed witness with material evidence. To impeach a president on this record would expose every future president to the same type of inchoate impeachment. Principal often takes us to a place we would prefer not to be. That was the place seven Republicans found themselves in the Johnson trial, when they saved a president from acquittal that they despised. For generations they even celebrated his profiles of courage.


Senator Edmund Ross said it was like looking down into his open grave, and then he jumped because he didn’t have any alternative. It’s easy to celebrate those people from the distance of time and circumstance in the age of rage. It’s appealing to listen to those saying, forget the definitions of crimes, just do it. Like this is some impulse-buy Nike sneaker.


You could certainly do that. You can declare the definitions of crimes alleged are immaterial and just an exercise of politics, not the law. However, those legal definitions and standards which I’ve addressed in my testimony, are the very thing that divide rage from reason.


This all brings up to me, and I will conclude with this, of a scene from A Man For All Seasons by with Sir Thomas Moore. When his son-in-law, William Roper put the law … Suggested that Moore was putting the law ahead of morality. He said, “Moore would give the devil the benefit of the law.”


When Moore asks Roper, would he instead cut a great road through the law to get after the devil? Roper proudly declares, “Yes, I’d cut down every law of England to do that.”

Moore responds, “And when the last law is cut down, and the devil turned around on you, where would you hide, Roper? All the laws being flat.” He said, “This country is planted thick with laws from coast to coast, man’s laws, not God’s, and if you cut them down and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?”


And he finished by saying, “Yes, I’d give the devil the benefit of law for my own sake.” So I will conclude with this. Both sides of this controversy have demonized the other to justify any measure in their defense, much like Roper. Perhaps that’s the saddest part of all of this.


We have forgotten the common article of faith that binds each of us to each other in our constitution. However, before we cut down the trees so carefully planted by the framers, I hope you will consider what you will do when the wind blows again, perhaps for a democratic president. Where will you stand then, when all the laws being flat? Thank you, again, for the honor of testifying today, and I’d be happy to answer any questions.

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