Turley: Testifying for Republicans should not be a sin for academics

Turley: Testifying for Republicans should not be a sin for academics
© Greg Nash

Journalist Henry Louis Mencken once observed, “Say what you will about the Ten Commandments, you must always come back to the pleasant fact that there are only ten of them.” Despite unending respect for Mencken, this is an occasion in which I found him mistaken, after I violated the Eleventh Commandment, “Thou shalt not testify for Republicans.”

Worse yet, I am a recidivist sinner, after testifying as a constitutional expert in both the Clinton and Trump impeachment hearings. Like all mortal sins, the violation of the Eleventh Commandment comes with not just eternal but immediate damnation. What is most striking about this commandment is that it does not matter if your testimony is made in good faith. For instance, under the Ninth Commandment, you are only guilty if you give false evidence against your neighbor. But under the Eleventh Commandment, it does matter if your testimony is true or false. A law fearing academic must not give any testimony for Republicans.

In my testimony before the House Judiciary Committee regarding the impeachment of President TrumpDonald John TrumpTrump administration eyes proposal to block jet engine sales to China: report Trump takes track to open Daytona 500 Brazile 'extremely dismayed' by Bloomberg record MORE, I opposed the position of my fellow witnesses that the definition of actual crimes is immaterial to their use as the basis for impeachment. I specifically opposed impeachment articles based on bribery, extortion, campaign finance violations, or obstruction of justice. The House Judiciary Committee ultimately rejected those articles and adopted the only two articles I felt could be legitimately advanced to a vote, which are abuse of power and obstruction of Congress. Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerTrump adviser presses House investigators to make Bezos testify Nadler demands answers from Barr on 'new channel' for receiving Ukraine info from Giuliani Trump predicts Ocasio-Cortez will launch primary bid against Schumer MORE even ended the hearing quoting my position on abuse of power. Our only disagreement was that I opposed impeachment on this record as incomplete and insufficient for submission to the Senate.

ADVERTISEMENT

None of that matters, however, under the Eleventh Commandment. It is the act of testifying for Republicans that is deemed a sin against the legal academy. Indeed, what followed was a series of false stories attacking not my testimony but me personally. The falsity of these stories serves as a warning to any academic who considers straying from the Democratic path. One of the most bizarre stories was that I testified differently on my views of impeachment in the Clinton and Trump impeachments. Given the gap of more than two decades, it certainly might not be strange for views to change. However, my views in the two cases remained the same.

In both hearings, I said a president could be impeached for noncriminal conduct, including abuse of public office. Yet several stories objected that, in the Clinton case, I warned Congress, “If you decide that certain acts do not rise to impeachable offenses, you will expand the space for executive conduct.” Somehow this was portrayed as a “flip flop” since I was arguing against impeachment in the Trump hearings on this record. It does not matter that the House Judiciary Committee did what I suggested in dropping the four criminal theories for the articles, or moving forward with the two I said would be legitimate. I was not arguing against the two articles adopted to impeach, only that a complete record was absent.

More importantly, the statement in the Clinton case referred to perjury. Democrats argued back then that a president could commit perjury on same subjects, like sexual relations, and not face impeachment. They argued that an impeachment crime must be tied to the office and not to personal interests. That was ridiculous and would allow a president to kill a lover but not face impeachment. Indeed, the Democratic position would allow a presidential Harvey Weinstein to abuse countless interns and then pressure them to lie to an independent counsel in the investigation.

Perhaps the most vile false story can be traced to a tweet sent out by a University of Baltimore professor asking, “Does anybody else remember @JonathanTurley appearing on MSNBC to explain that Sonia SotomayorSonia SotomayorRush Limbaugh medal an insult to Latinos, immigrants Supreme Court sharply divided over state aid for religious schools Justice Roberts neglects his own role in tilting American democracy MORE did not have the intellect to serve on the Supreme Court?” However, I have never said anything like that. Yet from cable news to liberal websites, this false story was all the rage, with titles like “Jonathan Turley thought Sonia Sotomayor was not smart enough to be on the Supreme Court.”

When Sotomayor was nominated, I was asked as a legal analyst to review her opinions and give my view of what that body of work suggested about her potential on the Supreme Court. The issue at the time was whether President Obama appointed an intellectual counterweight to conservative Justice Antonin Scalia. I noted that her opinions were narrow and offered little insight into her potential as an intellectual force on the Supreme Court. My comments were directed to her opinions and not her intellect. I was also not alone in this conclusion. Adam Liptak in the New York Times also noted that her opinions were narrow and “reveal no larger vision, seldom appeal to history, and consistently avoid quotable language.”

ADVERTISEMENT

In the interview cited by the University of Baltimore professor, I gave my view of numerous opinions of Sotomayor, which did not contain anything particularly deep or profound in truly judging her possible impact on the Supreme Court. But I immediately stated that this is not unique and that other justices have had similarly unremarkable appellate opinions yet proved to be profound on the Supreme Court. I expressly compared Sotomayor to Justice John Paul Stevens, who I have long praised. I said she could prove to be a truly great justice but that her opinions did not offer any glimpse into how Sotomayor might emerge in such a role.

I returned to these points in my analysis of her nomination and objected to those who stated that her narrow decisions were evidence of a lack of intellectual depth. I wrote that this was “demonstrably absurd” and that she is clearly “quite intelligent,” adding that her record is “little different from records of Republican nominees who enthralled these same critics.” I repeatedly stressed that she could prove to be a great nominee in finding voice and depth in her opinions if she served on the Supreme Court.

Some articles objected that, in an “unprompted” comment, I raised her gender and race. I did so to praise the selection of the first Latina to the Supreme Court, a nomination that I said was “rightfully” a point of pride. The vast majority of news stories also referenced that historic aspect of her nomination. But that was separate from the analysis of her opinions and the question of her intellectual legacy. What was also omitted is that, before her nomination, I wrote a column on intellectual judicial leaders and pushed for the nomination of liberal powerhouse Diane Wood.

None of that matters, however, because heresy demands condemnation, whether or not it is based in reality. This is all meant to get people to not seriously consider the flaws in this impeachment, including the articles that ultimately were dropped. For any academic who is tempted to testify for Republicans in an impeachment, I can only caution that the Bible said, “Vengeance is mine, sayeth the Lord.” Nonetheless, judgment is more immediate for anyone who strays from the chosen professorial path.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.