Constitutional scholar Jonathan Turley told House Democrats that charging President Trump with a count of obstruction of justice for going to the courts over the subpoena of witnesses is itself an abuse of power.
"If you make a high crime and misdemeanor out of going to the courts, it is an abuse of power. It's your abuse of power," Turley said during the first day of impeachment inquiry hearings in the House Judiciary committee on Monday.
Responses to Jonathan Turley's statements:— CSPAN (@cspan) December 4, 2019
Feldman: "The constitution, the supreme law of the land, specifies bribery as a ground of impeachment."
Gerhardt: "I know there's never been anything like the president's refusal to comply with subpoenas from this body." pic.twitter.com/t6PO3Ubch3
JONATHAN TURLEY: I'd also caution you about obstruction. Obstruction is a crime also with meaning. It has elements. It has case authority. The record does not establish obstruction in this case.
That is, what my esteemed colleague said was certainly true. If you accept all of her presumptions, it would be obstruction. But impeachments have to be based on proof, not presumptions. That's the problem when you move forward on this abbreviated schedule.
It has not been explained to me why you want to set the record for the fastest impeachment. Fast is not good for impeachment. Narrow, fast impeachments have failed. Just ask Johnson. So the obstruction issue is an example of this problem. Here here's my concern.
The theory being put forward is that President Trump obstructed Congress by not turning over material requested by the committee.
Citations have been made to the third article of the Nixon impeachment. First of all, I want to confess, I've been a critic of the third article of the Nixon impeachment my whole life. My hair catches on fire every time someone mentions the third article. Why? Because you would be replicating one of the worst articles written on impeachment. Here's the reason why. Peter Rodino, as the Chairman of Judiciary, his position was that Congress alone decides what information may be given to it. Alone. His position was that the courts have no role in this. By that theory, any refusal by the president based on executive privilege or immunity would be the basis of impeachment. That is essentially the theory being replicated today.
President Trump has gone to the courts. He's allowed to do that. We have three branches, not two. I happen to agree with some of your criticism about President Trump, including that earlier quote my colleague talked about, he's saying there's this Article two and he gives this overriding interpretation. I share that criticism. You're doing the same thing with Article I.
You're saying Article I gives us complete authority that when we demand information from another branch, it must be turned over or we'll impeach you in record time. Making that worse is you have such a short investigation. It's a perfect storm. You set an incredibly short period, demand a huge amount of information, and when the president goes to court, you then impeach him. Does that track with what you've heard about impeachment? Does that track with the rule of law that we talked about?
On obstruction, I would encourage you to think about this. In Nixon, it did go to the courts, and Nixon lost. And that was the reason Nixon resigned. He resigned a few days after the Supreme Court ruled against him in that critical case. But in that case, the court recognized there are executive privilege arguments that can be made. It didn't say you had no right coming to us, don't darken our doorstep again. It said: "We've heard your arguments, we've heard Congress's arguments, and you know what? You lose. Turn over the material to Congress."
What that did for the Judiciary is it gave this body legitimacy. It wasn't the Rodino extreme position that only you decide. Recently there are some rulings against President Trump, including a ruling involving Don McGahn.
Mr. Chairman, I testified before you a few months ago. We had an exchange and I encouraged you to bring those actions. You said you thought you'd win. You did... That's an example of what can happen if you actually subpoena witnesses and go to court. Then you have an obstruction case because a court issues an order. And unless they stay that order by a higher court, you have obstruction.
But I can't emphasize this enough and I'll say it just one more time. If you impeach a president, if you make a high crime and misdemeanor out of going to the courts, it is an abuse of power. It's your abuse of power.
You're doing precisely what you're criticizing the president for doing. We have a third branch that deals with conflicts at the other two branches. What comes out of there and what you do with it is the very definition of legitimacy.