Impeachment trial sacrifices our values just to sack Donald Trump

Impeachment trial sacrifices our values just to sack Donald Trump
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In the movie “Gilda,” Rita Hayworth delivered perhaps the ultimate film noir line. Looking at her former lover, she declared, “I hate you so much that I would destroy myself to take you down with me.” Hayworth made destruction sound alluring. That line came to mind as I watched House impeachment managers and Senate Democrats discard the values that once defined fair trials and our values under the Constitution.

When lawyers for Donald TrumpDonald TrumpTrump State Department appointee arrested in connection with Capitol riot Intelligence community investigating links between lawmakers, Capitol rioters Michelle Obama slams 'partisan actions' to 'curtail access to ballot box' MORE objected that he was not afforded due process for the House, the managers said due process was not needed. When the defense objected that his remarks before the riots last month were protected under the First Amendment, the House scoffed that free speech is inapplicable and “frivolous” in an impeachment. Nothing is so sacred now that it cannot be discarded in pursuit of Trump. It was made clear that his trial is about the verdict rather than our values.

Even with dismissal all but ensured, there was no room for traditions like due process or free speech. There was one issue, the same one that has driven our media and politics for four years, which is Trump. Some of us have objected that extreme interpretations and biased coverage destroy our legal and journalistic values. It was not done out of love for Trump. I voted against him in two elections and regularly denounced his actions and rhetoric. But I cherish our values more than I dislike him.


That is why the second Trump impeachment trial played out with the film noir flourish, featuring the same “lost innocence” and “desperate desire” for that movie genre, most obviously when the managers dismissed due process. Indisputably, the House could have held at least a few hearings before impeaching Trump while he was in office. House leaders knew the Senate would not hold a trial before the end of his term so they had until the inauguration to impeach him. They did so a week before.

A hearing would have given Trump a chance to respond to the allegation against him. No one has ever been impeached without this opportunity. It would have let witnesses be called, including many who spoke publicly, to create even a minimal record for the trial. Yet the House refused and then declined for more than four weeks to call one dozen witnesses with direct evidence to create a record even after its snap impeachment.

The House could have afforded basic due process but chose not to simply because it does not have to. When confronted about this by the Senate, a House manager scoffed at the notion of more due process. Representative Ted Lieu said, “Trump is receiving any and all process that he is due.” It is a chilling answer since Trump received none in the House. There was a time when denying an individual due process would have been outrageous. We do not afford due process to people just because we have to.

It is like civility and other values. They are not observed because they are mandatory but because they are right. Due process defines our actions. It is dedicated to upholding the Constitution. So to deny this most basic of values in its defense is akin to burning down a building in the name of fire safety. Yet the House took the position that a president can be impeached and tried without any formal record of a hearing or witnesses.

Then came the matter of free speech. The defense for Trump argued that it is inherently wrong to impeach a president for remarks protected under the First Amendment. The House managers cited the letter written by law professors declaring the argument “frivolous” even though some of those professors believe the remarks of Trump could indeed be protected under cases like Brandenburg versus Ohio. Understanding why such remarks are considered to be protected is relevant in whether they can be treated as a violation of the Constitution for the purpose of impeachment.


Just as courts balance the value of prosecution against the effect on free speech, the Senate can strike that same balance in an impeachment trial. So even if you believe the First Amendment does not apply in the case of incitement, you still have to decide if the remarks of Trump represented incitement or exercise of free speech. Yet the professors had written the First Amendment “does not apply” to this impeachment trial.

House managers were asked why they did not present a case with specific elements of incitement set forth with the Supreme Court. Representative Jamie Raskin said blissfully that this case and Trump mark one instance of incitement from a president with its own elements. So it does not have to meet the definition of incitement. Under such logic, the House could have impeached Trump for a violation of the Endangered Species Act and said it does not even need to involve actual endangered species.

This trial captures all the rage. For four years, people claimed impunity to discard legal and journalistic standards. They claimed that attacks on due process, free speech, and media objectivity are noble in pursuit of Trump. You can be lionized for throwing aside such values in order to get him. A trial used to be viewed as disgraceful without due process or basic legal standards. But many have allowed Trump to define them more than their values. They are willing to destroy their values to destroy him.

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 was called by House Republicans as a witness with the impeachment hearings of Bill Clinton and Donald Trump, and has also consulted Senate Republicans on the legal precedents of impeachment in advance of the current trial. You can find him on Twitter @JonathanTurley.