On Thursday, constitutional law professor Jonathan Turley said Rep. Jerrold Nadler (D-N.Y.) had made a “huge blunder” by insulting the senators who would decide whether or not to convict President Donald Trump. In a follow-up op-ed on Friday, he advised the House Democratic impeachment managers to accept that their case was essentially dead on arrival and to slice their articles of impeachment in half. Only by dropping the “obstruction of Congress” impeachment article can they hope to get the Senate to agree to have witnesses in the trial for the “abuse of power” article.
The House impeachment managers “lost this case before it began — not because of the Republican majority but because of the House managers’ own historic blunder in rushing the impeachment forward on an incomplete record,” he wrote in The Washington Post. “They now must make a choice between the disastrous in simply staying the course to certain acquittal or the unpalatable in admitting the blunder and offering a compromise.”
Talk of a compromise has focused on the idea of trading witnesses, with Republicans allowing Democrats to call former national security adviser John Bolton in exchange for Democrats allowing Republicans to call Hunter Biden. “However, such a compromise does not address the separate institutional concern of some senators, likely including the four swing senators,” Turley warned. “For them, the threshold issue is not the inclusion of witnesses in the Senate but the failure of the House to take their testimony.”
He noted Sen. Lisa Murkowski (R-Alaska)’s reluctance to call witnesses whom the House had failed to pursue in its rushed impeachment vote.
“The decision sits now with the House managers. They can either just grab face time on national television or they can move to deal with their blunder and try to resuscitate this case. They might be able to do so but they will have to offer more than a witness swap,” the constitutional lawyer wrote.
Turley suggested a far grander compromise: “To put it simply, it may be time to dismiss Article II.” He insisted the “obstruction of Congress” charge was “dead on arrival,” and suggested a vote to dismiss the article would allow the Senate to go on record in opposition to the House’s abuse of power.
Turley had previously testified that House Democrats abused their power by impeaching Trump for wanting to litigate a congressional subpoena in court.
“I can’t emphasize this enough…if you impeach a president if you make a high crime and misdemeanor 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,” he had warned.
Striking this whole impeachment article “just might be enough to open a path for witnesses on Article I and the abuse-of-power charge.”
Democrats had already effectively sacrificed any potential obstruction article by rushing the vote before Christmas, Turley argued. “The short period set by the House did not allow the White House to challenge a subpoena and effectively made the seeking of judicial review a ‘high crime and misdemeanor.’ When Congress demands documents, presidents often have objections based on the inherent immunities or privileges of their office. Both Richard M. Nixon and Bill Clinton were able not only to seek judicial review but also to take their appeals all the way to the Supreme Court before facing impeachment. Nixon soon resigned after losing that case.”
The constitutional lawyer noted that Trump would be well within his rights to claim executive privilege if Congress requested communications between the president and John Bolton.
“Even before the impeachment vote, Bolton indicated his interest in testifying but it would require a subpoena. The House, however, refused to issue such a subpoena or take other reasonable steps to secure evidence because it feared such a move would push the court proceedings into late spring or beyond,” Turley wrote. To make matters worse, the House withdrew the subpoena it had issued for Bolton’s deputy, Charles Kupperman. Kupperman indicated he might testify but went to court to review the subpoena. Before the court could rule, the House pulled the subpoena!
Turley put it bluntly: “It is time for Democrats to acknowledge the blunder in the rushed vote.”
“In hockey, you lose a player in a power play. In football, penalties mean you lose downs or yards or possession. The Senate could similarly cry foul and dismiss Article II while moving forward on Article I with limited witnesses,” he suggested.
“The House managers must now decide if they are trying to score political points or win a case. If it is the latter, they need to deal with their own failure honestly and decisively. Neither side will be delighted with such a compromise, but it would allow the Senate to protect its institutional interests while allowing the House to prove the primary allegations in the case,” Turley insisted.
While this compromise — cutting impeachment in half in order to get Senate witnesses — might seem “unpalatable” to Democrats, it would be “disastrous” for them to continue with the current case, he argued.
By rushing to impeachment, Democrats abused their power and made executive privilege an impeachable offense. Even the first article — abuse of power — arguably involves impeaching Trump for carrying out foreign policy, but at least that case may be arguable. According to Turley, Democrats have already lost if they cling to the second article. His advice only underscores how badly this impeachment has backfired.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.