Did House Democrats score points on Donald Trump yesterday? Undoubtedly, Jonathan Turley tells NPR, but then again, House Republicans scored a few on House Democrats as well. “Both sides have good narratives here,” Turley continues, but the real question is whether Democrats gained ground on impeachment. “And that I’m not quite convinced about [that].”
As far as Adam Schiff’s argument that bribery can be stretched to cover all sorts of bad presidential behavior, Turley’s not buying it. “I’m afraid history does not support Chairman Schiff on his suggestion on a bribery article of impeachment”:
Turley had written about his skepticism of Schiff’s claim yesterday at his website. In fact, Turley notes in this interview, the idea initially amused him coming from an advocate of a “living constitution” who suddenly wants to revert to originalism. The problem is that Schiff’s wrong about the originalism in this instance as well:
That limitless definition would convert most of the conversations between presidents and other heads of state into potential bribery cases. Presidents often try to get every concession from aid in such conversations. Some of those concessions may clearly advantage a president as a political matter. Likewise, presidents may perform other acts that would meet such a definition. President Bill Clinton not only pardoned a family member but gave a pardon to a leading Democratic donor. The pardon of fugitive Marc Rich was widely and correctly ridiculed as an absurd and corrupt use of the authority. Was that a thing of value being offered or given in return for favors?
I previously wrote a series of academic pieces on the inclusion and meaning of these terms in the Constitution, including SENATE TRIALS AND FACTIONAL DISPUTES: IMPEACHMENT AS A MADISONIAN DEVICE, 49 Duke L.J. 1(1999). In that work, I discussed how the most relevant debate on this standard occurred on a single day and constitutes a couple of pages of record, including an exchange between the main protagonists, Mason and Madison. Mason objected to the use of Treason and Bribery as too limited. For that reason, he wanted to add a broader term “maladministration.” That broader meaning of impeachment was rejected. I also discussed this history as a witness during the Clinton impeachment hearings. …
There are legitimate issues concerning abuse of power for Congress to consider. As I have written, this is shaping up as the most narrow impeachment of a president in history. Redefining the same acts as different crimes is an approach that will not broaden that foundation and will only raise questions of the legitimacy of the effort.
By trying to stretch the term bribery to this instance would directly contradict the conclusions of the founders when writing the Constitution. Using Schiff’s argument in an impeachment article would “undermine them dramatically,” Turley warns. “You would follow tragedy with farce.”
Similarly, although on different grounds, former special prosecutor Ken Starr also declared yesterday’s hearings a failure for Democrats. Starr tells Fox News that both sides acquitted themselves well, but that Republicans remained “rock solid.” That means impeachment won’t go anywhere anyway, but more importantly, “no crime was proven today”:
STARR: The members were very strong. I think overall the members acquitted themselves extremely well, on both sides of the aisle. The quality of the questioning was extremely high, for the most part.
One key thing — the Republicans are not only rock-solid, so that means that if this trend continues, there is no hope for impeachment, or for conviction of the House.
BAIER: In the Senate, you mean.
STARR: In the Senate. Here, for me, is something that was very telling. No crime was proven today. There were a lot of terms used, extortion and bribery, but no crime. This is very unlike Nixon and unlike Clinton.
It’s not over yet, of course, but it doesn’t appear to be going anywhere yet — and won’t with Yovanovitch either, who has also already testified that she knew nothing of a quid pro quo either officially or unofficially. None of these witnesses had contact with Trump at all, and until they get someone in the box who did and can assert that Trump committed an actual crime, it will become the farce of which Turley warns.