‘Fast and Furious’ impeachment looks like a rush to a failed case
The day after the first House Judiciary Committee impeachment hearing, Speaker Nancy Pelosi announced that the panel would move immediately to draft articles of impeachment, with a vote expected within two weeks. The most discussed crime is now obstruction of Congress, based on the Trump administration seeking to block witnesses. Democratic lawmakers in the hearing repeated the words of Judge Ketanji Brown Jackson in rejecting claims of immunity like a mantra, “Presidents are not kings.”
The executive claim of unchecked authority filled Democratic lawmakers and witnesses with utter disgust. One witness, Harvard professor Noah Feldman, declared that Jackson “held that there is no absolute immunity which would protect a presidential adviser from having to appear before the House of Representatives and testify.” Then another witness, Stanford professor Pamela Karlan, stated, “So kings could do no wrong, because the king’s word was law, and contrary to what President Trump has said, Article Two does not give him the power to do anything he wants.”
That is manifestly true. Indeed, another Jackson ruling went a step even further in denouncing “the proposition that the executive may assert an unreviewable right to withhold materials from the legislature” as an offense to the very foundations of our constitutional system. However, those were the words of a different Jackson, Judge Amy Berman Jackson, about a different president, Barack Obama. He withheld evidence in the “Fast and Furious” investigation of the murder of an agent with a gun supplied to criminal gangs by the federal government. Obama not only withheld witness testimony and evidence but also claimed that a court could not even review his order. While this sounds a tad monarchical, many Democratic lawmakers, including Pelosi and Judiciary Committee Chairman Jerrold Nadler, overwhelmingly supported Obama in defying Congress. There was no rush to impeach by Republicans or Democrats.
Therefore, you might call this the “Fast and Furious” impeachment. As with the abuse of power allegation, my objection is not actually with the underlying obstruction claim against Trump but with the incomplete record to support it. I am a longtime critic of broad executive privilege claims, and previously testified to the House Judiciary Committee to encourage its challenging of Trump in cases like the one involving former White House counsel Don McGahn. It comes down again to speed. Just a few weeks ago, Pelosi said the House would begin an impeachment inquiry and push for a final vote by the end of December. Democrats insisted they would not subpoena key witnesses, like former national security adviser John Bolton, or litigate other claims over privilege.
The House burned three months without moving on key witnesses. If it sought to compel testimony in the Ukraine matter, it could have asked for an expedited ruling and likely gotten a district court order by now. In the Nixon impeachment, the courts expedited review and rendered a series of rulings. The final ruling by the Supreme Court, in United States versus Richard Nixon, was handed down two months after an order by the trial court. The White House could oppose expediting the cases. But those rulings and the longer period would reinforce an obstruction article. Instead, Democrats set an arbitrary timeline to impeach by Christmas. I am concerned about manufacturing impeachment claims by establishing artificially short periods for production that will practically block judicial review. Some of these conflicts concern communications between the president and his national security advisers, conversations described by the Supreme Court as the apex of executive privilege for presidents.
Even more disturbing is the argument by some that litigating would be a mistake because the conservative majority of the Supreme Court will just side with Trump. However, that would mean the investigation is being curtailed to avoid a ruling in support of Trump. If that were the case, it would mean impeaching a president for maintaining a position that you believe the courts would uphold. In reality, I do believe Congress would prevail in many of these fights. The recent ruling by Judge Ketanji Brown Jackson concerned the special counsel investigation and the testimony of McGahn. That case is already before the District of Columbia Circuit Court of Appeals. If Democrats add an obstruction article based on the special counsel investigation, the most viable claim is the one involving McGahn. His case can now be expedited, however, not if Democrats are hellbent on moving with a “rocket docket” of impeachment within a couple weeks.
Such added support is particularly important in a case with obvious defenses. The House is about to impeach Trump for blocking witnesses while, at the same time, saying the record is overwhelming based on the testimony of many of those very witnesses. That record is composed of roughly a dozen witnesses, including many officials who are still working in the executive branch. None of those witnesses have been disciplined or fired for opting to testify. In addition, Trump released transcripts of his controversial phone calls, which ordinarily would remain privileged and nonpublic information. Finally, while the obstruction claims against Nixon were made in conjunction with established crimes, the array of crimes alleged against Trump, like bribery, extortion, and obstructing justice, lack key elements of those crimes. This impeachment would be based more on obstructing the investigation and less on the alleged crimes themselves.
Instead of explaining the abbreviated period of investigation, Democrats have falsely claimed that this is actually a longer investigation than the impeachment of Andrew Johnson and the impeachment of Bill Clinton. That is not correct, though in my testimony before the House Judiciary Committee I stressed that, with regard to President Johnson, it depends on how you count the days. In order to claim that this is actually a longer investigation, Democrats use the date of the passage of impeachment resolutions instead of the underlying investigations to measure time.
The record in this case is as short as the timeline. Representative Sheila Jackson Lee quoted me as saying that the record is “wafer thin” and held up two binders to prove there is an extensive record for impeachment. To be clear, I testified that this record was comparatively not actually wafer thin. However, the mere fact that Jackson Lee could hold up the relevant record in two binders is precisely the point. If she were to show the record in the Nixon or Clinton cases, she would have had to drive a semitruck into the committee room. Of course, none of this matters. Pelosi will get a fast impeachment, and there is no shortage of fury. Ultimately, “Fast and Furious” amounts to little more than a rush to a failed impeachment.
Jonathan Turley is the chair of public interest law at George Washington University and served as the last lead counsel in a Senate impeachment trial. He testified as a Republican witness in House Judiciary Committee hearing in the Trump impeachment inquiry. Follow him @JonathanTurley.