‘It’s not defensible what the president has done’: Curious argument against Trump’s impeachment given short shrift

The Independent Politics 3 days ago

George Washington University law professor Jonathan Turley has won praise from civil libertarians by representing “out of the box” defendants, such as whistleblowers and terrorism suspects, in federal court cases. 

At Wednesday’s House Judiciary Committee impeachment hearing, Mr Turley took on another difficult case: defending the president of the United States against allegations that he abused his office.

But after seven hours of testimony, many of the Democratic legislators and legal experts who watched him deliver his contrarian take on whether President Donald Trump committed any impeachable offences weren’t impressed.

“I am concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger,” Mr Turley said. “If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president.”

It was a stark contrast from what he’d said in 1998, when the House debated whether to impeach then-president Bill Clinton.

Accused of abusing his office by pressing the Ukrainian president in a July phone call to help dig up dirt on Joe Biden, who may be his Democratic rival in the 2020 election. He also believes that Hillary Clinton’s deleted emails - a key factor in the 2016 election - may be in Ukraine, although it is not clear why.
Believed to be a CIA agent who spent time at the White House, his complaint was largely based on second and third-hand accounts from worried White House staff. Although this is not unusual for such complaints, Trump and his supporters have seized on it to imply that his information is not reliable. Expected to give evidence to Congress voluntarily and in secret.
The lawyer for the first intelligence whistleblower is also representing a second whistleblower regarding the President's actions. Attorney Mark Zaid said that he and other lawyers on his team are now representing the second person, who is said to work in the intelligence community and has first-hand knowledge that supports claims made by the first whistleblower and has spoken to the intelligence community's inspector general. The second whistleblower has not yet filed their own complaint, but does not need to to be considered an official whistleblower.
Former mayor of New York, whose management of the aftermath of the September 11 attacks in 2001 won him worldwide praise. As Trump’s personal attorney he has been trying to find compromising material about the president’s enemies in Ukraine in what some have termed a “shadow” foreign policy. In a series of eccentric TV appearances he has claimed that the US state department asked him to get involved. Giuliani insists that he is fighting corruption on Trump’s behalf and has called himself a “hero”.
The newly elected Ukrainian president - a former comic actor best known for playing a man who becomes president by accident - is seen frantically agreeing with Trump in the partial transcript of their July phone call released by the White House. With a Russian-backed insurgency in the east of his country, and the Crimea region seized by Vladimir Putin in 2014, Zelensky will have been eager to please his American counterpart, who had suspended vital military aid before their phone conversation. He says there was no pressure on him from Trump to do him the “favour” he was asked for. Zelensky appeared at an awkward press conference with Trump in New York during the United Nations general assembly, looking particularly uncomfortable when the American suggested he take part in talks with Putin.
The vice-president was not on the controversial July call to the Ukrainian president but did get a read-out later. However, Trump announced that Pence had had “one or two” phone conversations of a similar nature, dragging him into the crisis. Pence himself denies any knowledge of any wrongdoing and has insisted that there is no issue with Trump’s actions. It has been speculated that Trump involved Pence as an insurance policy - if both are removed from power the presidency would go to Democratic House Speaker Nancy Pelosi, something no Republican would allow.
Trump reportedly told a meeting of Republicans that he made the controversial call to the Ukrainian president at the urging of his own energy secretary, Rick Perry, and that he didn’t even want to. The president apparently said that Perry wanted him to talk about liquefied natural gas - although there is no mention of it in the partial transcript of the phone call released by the White House. It is thought that Perry will step down from his role at the end of the year.
The former vice-president is one of the frontrunners to win the Democratic nomination, which would make him Trump’s opponent in the 2020 election. Trump says that Biden pressured Ukraine to sack a prosecutor who was investigating an energy company that Biden’s son Hunter was on the board of, refusing to release US aid until this was done. However, pressure to fire the prosecutor came on a wide front from western countries. It is also believed that the investigation into the company, Burisma, had long been dormant.
Joe Biden’s son has been accused of corruption by the president because of his business dealings in Ukraine and China. However, Trump has yet to produce any evidence of corruption and Biden’s lawyer insists he has done nothing wrong.
The attorney-general, who proved his loyalty to Trump with his handling of the Mueller report, was mentioned in the Ukraine call as someone president Volodymyr Zelensky should talk to about following up Trump’s preoccupations with the Biden’s and the Clinton emails. Nancy Pelosi has accused Barr of being part of a “cover-up of a cover-up”.
The secretary of state initially implied he knew little about the Ukraine phone call - but it later emerged that he was listening in at the time. He has since suggested that asking foreign leaders for favours is simply how international politics works. Gordon Sondland testified that Pompeo was "in the loop" and knew what was happening in Ukraine. Pompeo has been criticised for not standing up for diplomats under his command when they were publicly criticised by the president.
The Democratic Speaker of the House had long resisted calls from within her own party to back a formal impeachment process against the president, apparently fearing a backlash from voters. On September 24, amid reports of the Ukraine call and the day before the White House released a partial transcript of it, she relented and announced an inquiry, saying: “The president must be held accountable. No one is above the law.”
Democratic chairman of the House intelligence committee, one of the three committees leading the inquiry. He was criticized by Republicans for giving what he called a “parody” of the Ukraine phone call during a hearing, with Trump and others saying he had been pretending that his damning characterisation was a verbatim reading of the phone call. He has also been criticised for claiming that his committee had had no contact with the whistleblower, only for it to emerge that the intelligence agent had contacted a staff member on the committee for guidance before filing the complaint. The Washington Post awarded Schiff a “four Pinocchios” rating, its worst rating for a dishonest statement.
Florida-based businessmen and Republican donors Lev Parnas (pictured with Rudy Giuliani) and Igor Fruman were arrested on suspicion of campaign finance violations at Dulles International Airport near Washington DC on 9 October. Separately the Associated Press has reported that they were both involved in efforts to replace the management of Ukraine's gas company, Naftogaz, with new bosses who would steer lucrative contracts towards companies controlled by Trump allies. There is no suggestion of any criminal activity in these efforts.
The most senior US diplomat in Ukraine and the former ambassador there. As one of the first two witnesses in the public impeachment hearings, Taylor dropped an early bombshell by revealing that one of his staff – later identified as diplomat David Holmes – overheard a phone conversation in which Donald Trump could be heard asking about “investigations” the very day after asking the Ukrainian president to investigate his political enemies. Taylor expressed his concern at reported plans to withhold US aid in return for political smears against Trump’s opponents, saying: “It's one thing to try to leverage a meeting in the White House. It's another thing, I thought, to leverage security assistance -- security assistance to a country at war, dependent on both the security assistance and the demonstration of support."
A state department official who appeared alongside William Taylor wearing a bow tie that was later mocked by the president. He accused Rudy Giuliani, Mr Trump’s personal lawyer, of leading a “campaign of lies” against Marie Yovanovitch, who was forced out of her job as US ambassador to Ukraine for apparently standing in the way of efforts to smear Democrats.
One of the most striking witnesses to give evidence at the public hearings, the former US ambassador to Ukraine received a rare round of applause as she left the committee room after testifying. Canadian-born Yovanovitch was attacked on Twitter by Donald Trump while she was actually testifying, giving Democrats the chance to ask her to respond. She said she found the attack “very intimidating”. Trump had already threatened her in his 25 July phone call to the Ukrainian president saying: “She’s going to go through some things.” Yovanovitch said she was “shocked, appalled and devastated” by the threat and by the way she was forced out of her job without explanation.
A decorated Iraq War veteran and an immigrant from the former Soviet Union, Lt Col Vindman began his evidence with an eye-catching statement about the freedoms America afforded him and his family to speak truth to power without fear of punishment. One of the few witnesses to have actually listened to Trump’s 25 July call with the Ukrainian president, he said he found the conversation so inappropriate that he was compelled to report it to the White House counsel. Trump later mocked him for wearing his military uniform and insisting on being addressed by his rank.
A state department official acting as a Russia expert for vice-president Mike Pence, Ms Williams also listened in on the 25 July phone call. She testified that she found it “unusual” because it focused on domestic politics in terms of Trump asking a foreign leader to investigate his political opponents.
The former special envoy to Ukraine was one of the few people giving evidence who was on the Republican witness list although what he had to say may not have been too helpful to their cause. He dismissed the idea that Joe Biden had done anything corrupt, a theory spun without evidence by the president and his allies. He said that he thought the US should be supporting Ukraine’s reforms and that the scheme to find dirt on Democrats did not serve the national interest.
An expert on the National Security Council and another witness on the Republican list. He testified that he did not think the president had done anything illegal but admitted that he feared it would create a political storm if it became public. He said he believed the moving the record of the controversial 25 July phone call to a top security server had been an innocent mistake.
In explosive testimony, one of the men at the centre of the scandal got right to the point in his opening testimony: “Was there a quid pro quo? Yes,” said the US ambassador to the EU who was a prime mover in efforts in Ukraine to link the release of military aid with investigations into the president’s political opponents. He said that everyone knew what was going on, implicating vice-president Mike Pence and secretary of state Mike Pompeo. The effect of his evidence is perhaps best illustrated by the reaction of Mr Trump who went from calling Sondland a “great American” a few weeks earlier to claiming that he barely knew him.
A Pentagon official, Cooper said Ukrainian officials knew that US aid was being withheld before it became public knowledge in August – undermining a Republican argument that there can’t have been a quid pro quo between aid and investigations if the Ukrainians didn’t know that aid was being withheld.
The third most senior official at the state department. Hale testified about the treatment of Marie Yovanovitch and the smear campaign that culminated in her being recalled from her posting as US ambassador to Ukraine. He said: “I believe that she should have been able to stay at post and continue to do the outstanding work.”
Arguably the most confident and self-possessed of the witnesses in the public hearings phase, the Durham-born former NSC Russia expert began by warning Republicans not to keep repeating Kremlin-backed conspiracy theories. In a distinctive northeastern English accent, Dr Hill went on to describe how she had argued with Gordon Sondland about his interference in Ukraine matters until she realised that while she and her colleagues were focused on national security, Sondland was “being involved in a domestic political errand”. She said: “I did say to him, ‘Ambassador Sondland, Gordon, this is going to blow up’. And here we are.”
The Ukraine-based diplomat described being in a restaurant in Kiev with Gordon Sondland while the latter phoned Donald Trump. Holmes said he could hear the president on the other end of the line – because his voice was so “loud and distinctive” and because Sondland had to hold the phone away from his ear – asking about the “investigations” and whether the Ukrainian president would cooperate.

“While the Senate can decide not to remove a president in the interests of the nation for a variety of reasons… the House should not falter in maintaining a bright line for presidential conduct,” Mr Turley said at the time.

Rep. Karen Bass, D-California, told The Independent that she was “taken aback” by the weakness of Mr Turley’s arguments. 

“I thought he was really weak and superficial – I was surprised,” she said. 

Rep. Pramilla Jayapal, D-Washington, concurred with her colleague’s assessment, explaining that she “just didn’t find [his arguments] compelling at all.”

“A lot of his arguments were specific to process, but there’s nothing about the actual content of the facts of this 300-page report we just got from the intelligence committee,” she continued, noting that Mr Turley’s testimony today contradicts his Clinton-era statements.

She also took issue with Mr Turley’s suggestion that there is not sufficient evidence in the record to support articles of impeachment. 

“We have enormous amounts of evidence... nothing they [Republicans] have seems to be sticking because it’s not defensible what the president has done, and I don’t think Republicans should be trying to defend it. The president has clearly abused his power... the question is: what do we do about it?”

Florida Representative Val Demmings said Mr Turley’s testimony left her “a little confused”.

“It seems like his thought process on holding presidents who abuse their power accountable somewhat.”

California Rep. Ted Lieu singled out one of Mr Turley’s “weak” claims – that the definition of bribery Democrats are using is precluded by a Supreme Court case involving former Virginia governor Robert McDonnell – for ridicule.

“The freezing of military aid… is clearly an official act,” said Mr. Lieu. “Even under his standard, this would qualify as criminal bribery – he’s misstating what the Supreme Court actually found.”

And Rep. Jamie Raskin, D-Maryland – himself a former American University constitutional law professor – called Mr Turley’s argument that the House would abuse its power by impeaching Mr Trump for refusing to produce documents while cases over subpoenas were pending in court “ludicrous”.

“It’s why Trump is losing every case on this!” he said in a text message.

But there was one moment in which Democrats thoroughly agreed with Mr Turley.

When Republican counsel Paul Taylor asked Mr Turley if the impeachments of Richard Nixon and Bill Clinton for obstruction of justice had to do with a request for “false information” put forth by the president, the professor answered in the affirmative.

In fact, Mr Trump did make a request for a staff member to create “false information” in February 2018, when according to the report compiled by former FBI director Robert Mueller, he demanded that then-White House counsel Don McGahn write a false memorandum saying that he’d never asked Mr McGahn to fire Mr Mueller from his job as a special counsel investigating Russian interference in the 2016 US election after the New York Times published a story revealing that Mr McGahn had told Justice Department investigators that Mr Trump had done just that.

Asked whether Mr Turley had inadvertently made a good argument for impeaching Mr Trump, Mr Raskin replied: “I thought the same thing.”

Mr Lieu said it was “a very good point” that Mr Trump had obstructed justice by Mr Turley’s definition by demanding that Mr McGahn falsify evidence.

Another pre-eminent constitutional scholar, Harvard Emeritus Professor Lawrence Tribe, said Mr Turley’s argument had backfired, and had “indeed” made a case for an article of impeachment against Mr Trump. 

Mr Tribe also told The Independent that Mr Turley’s claim that the record did not yet support an article of impeachment for defying congressional subpoenas because the courts were considering cases brought by the House to enforce them did not hold water.

“The contemplated Article of Impeachment for blanket defiance of all House subpoenas – unprecedented undifferentiated stonewalling – doesn’t depend in the least on subpoenas working their way through the courts,” he said.

And another impeachment expert – former Watergate deputy special prosecutor Nick Akerman – was even less generous when asked about Mr Turley’s arguments.

“Most of what he says does not comport with the known facts,” Mr Akerman said, concurring with Rep. Lieu’s assessment that Mr Turley had misstated the Supreme Court’s definition of bribery as laid out in the McDonnell case.

“Turley completely misuses the Supreme Court’s opinion in McDonnell that simply requires an official act in exchange for something of value,” he said. 

“Here, the official act is Zelensky using his office to announce the investigations, Trump withholding the $391m appropriated by Congress for Ukraine’s defence, and Trump using his official capacity as President to grant or deny Zelensky a meeting at the White House.”

He, too, rejected Mr Turley’s argument against an article of impeachment for obstruction of congress while court cases over the subpoenas were still pending.

“As the DC District court pointed out last week, the proper way to assert executive privilege is to respond to the committee’s subpoena by showing up and then raising executive privilege on a question by question basis,” Mr Akerman said. 

“Here, Trump has not validly raised executive privilege for a single document, among the many which were subpoenaed, or on any particular testimony of any of his aides. Instead, he has just instructed his subordinates to ignore the subpoenas and has refused to produce documents.”


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