Most conservatives and Republicans saw Jonathan Turley’s testimony at the House Judiciary Committee impeachment hearing as a triumph for his meticulous argument against the proceedings. Turley himself sees it as a failure, as he writes at The Hill, because he had another purpose altogether. Turley wanted to bring rationality and perspective back to the process. Instead, Turley writes, he himself became a target for irrationality and hysteria:
In my testimony Wednesday, I lamented that, as in the impeachment of President Clinton from 1998 to 1999, there is an intense “rancor and rage” and “stifling intolerance” that blinds people to opposing views. My call for greater civility and dialogue may have been the least successful argument I made to the committee. Before I finished my testimony, my home and office were inundated with threatening messages and demands that I be fired from George Washington University for arguing that, while a case for impeachment can be made, it has not been made on this record.
It’s sadly predictable that the cancel culture would attempt to impose itself on Turley, but I suspect that Noah Feldman and Pamela Karlan might have provoked similar reactions from angry Trump supporters. The point Turley makes in this essay isn’t so much that irrationality and rabid anger is the province of one point of view, but that it’s infecting all parts of the electorate. As Turley testified earlier, crafting policy from rage is corrosive and dangerous for the precedents it sets as well as the amplification of the rage behind it.
Nevertheless, Turley’s experience with it this week comes from one direction on the political spectrum. Rather than deal with his arguments directly and with intellectual honesty, Turley writes that Democrats attempted to twist previous efforts in defending clients — one from an impeachment from federal office — to undermine his credibility. The chief culprit in Congress was Eric Swalwell:
Some of the most heated attacks came from Democratic members of the House Judiciary Committee. Representative Eric Swalwell of California attacked me for defending my client, Judge Thomas Porteous, in the last impeachment trial and noted that I lost that case. Swalwell pointed out that I said Porteous had not been charged with a crime for any conduct, which is an obviously material point for any impeachment defense.
But members of the media seemed eager to pile on as well, and amplified by Jerrold Nadler:
Rachel Maddow lambasted me on MSNBC for defending the judge, who was accused but never charged with taking bribes, and referred to him as a “moocher” for the allegations that he accepted free lunches and whether such gratuities, which were not barred at the time, would constitute impeachable offenses.
Washington Post columnist Dana Milbank expanded on this theme of attacking my past argument. Despite 52 pages of my detailed testimony, more than twice the length of all the other witnesses combined, on the cases and history of impeachment, he described it as being “primarily emotional and political.” Milbank claimed that I contradicted my testimony in a 2013 hearing when I presented “exactly the opposite case against President Obama” by saying “it would be ‘very dangerous’ to the balance of powers not to hold Obama accountable for assuming powers ‘very similar’ to the ‘right of the king’ to essentially stand above the law.”
But I was not speaking of an impeachment then. It was a discussion of the separation of powers and the need for Congress to fight against unilateral executive actions, the very issue that Democrats raise against Trump.
What amazes Turley most is the level of determination that went into attempting to discredit him. As Turley writes, he never argued that an impeachment required a statutory crime, but that in absence of one, the House had to have an even stronger evidentiary record of an abuse of power:
As I said 21 years ago, a president can still be impeached for abuse of power without a crime, and that includes Trump. But that makes it more important to complete and strengthen the record of such an offense, as well as other possible offenses. I remain concerned that we are lowering impeachment standards to fit a paucity of evidence and an abundance of anger. Trump will not be our last president. What we leave in the wake of this scandal will shape our democracy for generations to come. These “agitated passions” will not be a substitute for proof in an impeachment. We currently have too much of the former and too little of the latter.
This impeachment effort doesn’t have any direct evidence of an abuse of power, Turley pointed out, mainly because House Democrats don’t want to go spend the time to court to enforce their subpoenas. Instead, as Turley argued, they want to simply charge Trump for obstruction for defending executive privilege rather than spend the time necessary to allow the third branch of government to settle the dispute. That itself is an abuse of the power of impeachment:
Constitutional scholar Jonathan Turley says Democrats should subpoena witnesses and let it play out in the courts: “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.” https://t.co/90Rp5m0etk pic.twitter.com/5zoRLn1KXG
— ABC News (@ABC) December 4, 2019
Unfortunately for Turley, he found out the hard way that we live in an era of feelings over facts and outrage over debate. Perhaps at some later moment people will look back on this essay and lament that they missed Turley’s point, which plenty of people on both sides of the aisle will have cause to do. It’s well worth Turley’s time to set the marker now, regardless of how it will be received.