Turley: Impeachment trial witnesses could be ‘live torpedoes in the water’

The World
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The Senate impeachment trial against US President Donald Trump is expected to begin in earnest Jan. 21.

A two-thirds majority would be required to oust Trump in the 100-member Senate, meaning at least 20 Republicans would have to join Democrats in voting against Trump — an unlikely outcome. 

Over the weekend, impeachment managers from the House of Representatives and legal counsel for the president filed briefs outlining their arguments.

Timeline: Trial in the Senate: Where does impeachment go from here?

The managers drew on concerns about executive corruption outlined by the framers of the Constitution and said evidence presented "overwhelmingly establishes that [Trump] is guilty."

Trump's defense team impugned Democrats' motives and argued that the articles of impeachment were invalid. The brief also quoted professor Jonathan Turley's written statement for Dec. 4 testimony in front of the House Judiciary Committee during the impeachment inquiry. 

"As professor Turley summed it up, this impeachment 'stand[s] out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president,'" the defense's trial brief reads.  

Turley is a professor at the law school of George Washington University. His testimony about the constitutionality of the Trump impeachment dissented in many respects from the three other scholars testifying at the hearing. Turley spoke with The World's Marco Werman about what he sees as the Democrats' rush to impeach the president and the consequences it could have for trial in the Senate.  

Related: How Trump was impeached: A timeline

Marco Werman: The president's lawyers wrote in a brief this weekend that President Trump categorically and unequivocally denies each and every allegation in both articles of impeachment. We know obviously Trump has already been impeached by the House. What is impeachment as the process now goes into the Senate and what's at stake?

Jonathan Turley: Well, the trial, as it unfolds, is going to deal with the underlying allegations of the articles of impeachment. There are two: obstruction of Congress and abuse of power. In my testimony, I actually said those two articles would be legitimate if proven. The four articles that I primarily testified against were actually rejected by the committee where I disagreed with them was the rush to impeach. And I encouraged them to take a couple of months to try to complete this record to prove their case. And they obviously didn't do that. And so that's now creating a serious problem because the House effectively handed over control of its case to the Senate and also to the opposing party. They immediately demanded many of the same witnesses that I strongly encouraged them to wait and call before the House.

Related: McConnell says Republicans have the votes to set impeachment trial rules 

Like whom?

Well, people like John Bolton, the former national security adviser. The House never even bothered to subpoena Bolton, let alone to try to compel his testimony. So I think, quite frankly, there has been a serious — if not historic — blunder in how the House handled this impeachment. And I believe it's going to occupy a lot of us for many years as to why they did it this way.

Related: GAO report says Trump administration violated the law in withholding aid to Ukraine 

I mean, the Democrats kind of seem to believe that waiting would just push this into the courts and could delay the process potentially for years.

Well, the problem is they destroyed their own narrative. You know, I encouraged them to take a couple of months. And then [in] that time, they could have gotten some of these witnesses and certainly, they would have gotten a number of court orders. Instead, they rushed it and then they just stopped. They waited a month trying to pressure the Senate into calling these very same witnesses. Well, that was never a very plausible strategy, you know, to say that I'm going to hold back the impeachment you loathe unless you make concessions to me. So obviously, McConnell didn't make concessions. A month went by that could have been used by the House to actually create more of a record.

But now the question is, will the Senate call witnesses? Even though I disagree with what the House did, I think they should call witnesses. But the question is when you pass the rubicon on witnesses, what will that look like? The Democrats have developed a rather conflicted position. They say, well, our witnesses are relevant, but the witnesses Republicans want are not, particularly Hunter Biden. The chairman of the Judiciary Committee and one of the House managers, Jerry Nadler, said under no circumstances can Hunter Biden be called as a witness. Well, that creates a real conflict because Hunter Biden is a relevant witness to the defense. I mean, the president's arguing that he was concerned about corruption and specifically the Biden contract with this Ukrainian energy company. Now, you don't have to agree with a defense to recognize that this would be a relevant witness for the defense. But the House managers are saying that they will oppose that.

Related: Power outage: How did global leadership change in 2019? 

Both teams presented legal briefs over the weekend. President Trump's lawyers submitted a kind of summary and did not deny the core facts of what had happened. Instead, they argue that Trump broke no laws and was acting entirely appropriately and within his powers. Is that a smart defense?

Well, it's a Trump defense. You know, the defense looks very much like the man accused. If you boil down their response, it comes down to: "It was perfect." You know, the president has argued that the call was perfect. His actions were perfect. Every way this played out was perfect.

And obviously, many of us disagree with that. I disagreed with it in my testimony. I don't think his call was perfect. I think there [were] a great number of problems with it. But of course, that's not the standard. It isn't a choice between perfect and impeachable. There's much stronger defenses that can be made if they recognize that the president really committed an inappropriate act in raising the Bidens in that call. That doesn't mean it's impeachable.

But the president views this as a moment really sort of made for television. You know, he's going to maintain this consistent defense that everything was perfect and what they're doing is pure politics. And that's going to put some of the Republican senators in a bind because many of those senators do not believe the call was perfect. They do have serious concerns about what occurred. They just don't necessarily agree that it's impeachable.

Related: As impeachment trial looms, what's the view from Ukraine? 

How would you explain that to, say, Trump supporters who say, well, if there was no crime, then why should he be going through this trial?

Well, there's both a historical and practical reason. Historically, high crimes and misdemeanors in England and the United States were not confined to crimes. And indeed, even some of the framers like James Madison, referred to things like maladministration as being relevant to impeachment. But also practically, it doesn't make a lot of sense. I mean, if you think about all the things a president can do that would not necessarily be in the criminal code, you sort of realize why this would be a terrible idea. You know that if the president ... encouraged ... or demanded Ukraine [to] investigate his political opponents, let's say he wanted Elizabeth Warren's family investigated for no reason at all, presumably, most citizens would view that as an impeachable offense. So it goes too far, but it also has very little basis, I think, in history, in the language of the Constitution. So that's going to create a problem again for some of these moderate Republican senators. These are members who are not likely keen on the idea of creating new law here, of confining impeachment just to things you can find in the criminal code. So in some ways, this is coming down to sort of a muscle play. You know, that the Trump defense is telling the Republican senators, we expect your vote. And the defense is, "This was perfect and also, you can't impeach a president unless you have a crime."

Related: In the impeachment inquiry, is the US a defender of democracy — or corrupt itself? 

What's going to come out of this trial will depend on those moderate Republicans. What are you expecting, professor, to happen at the end of this trial?

Well, I think that there is currently support by four senators to have witnesses. I'm not too sure how that will play out. But once you do cross the rubicon, you're looking at a much longer trial.

Related: Morrison's testimony shows 'how irregular things have gotten' in DC 

I mean, most predictions suggest Trump will survive the Senate. Do you think the introduction of witnesses could change the outcome?

I do. I think witnesses are an unpredictable element. A good example is Clinton. You know, the Democrats lost in trying to block a deposition with Monica Lewinsky. But then they won in blocking her from live testimony. Well, last year, Monica Lewinsky came out and said that Bill Clinton called her after she was named as a witness, talked about her testimony, encouraged her to sign a false affidavit. And if he said that on the floor of the Senate, it would have been a game changer. So these witnesses can be live torpedoes in the water and they can hit anywhere.

This interview has been edited and condensed for clarity.

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