Friday, December 06, 2019

Professors, Impeachment, and Vanity

by Neil H. Buchanan

Earlier this year, I ended a 12-year stint on the faculty of The George Washington University Law School.  As such, I have been asked (off-list) whether I have any comments about my former colleague Jonathan Turley's testimony at the House Judiciary Committee's hearing earlier this week.  I have plenty of thoughts, but I will warn readers in advance that I have no juicy "insider goss" to share.

Turley was the legal witness called by the House Republicans at the hearing to make their case against impeaching Donald Trump.  Turley's testimony and comments have already received a great deal of attention (much of it extremely negative, and deservedly so), including in part of Professor Dorf's excellent column yesterday.  Turley's performance gave me even more reason to feel happy about my recent change in academic affiliation.

Below, I will discuss the substance, such as it is, of Turley's testimony.  But because so much commentary has already poured forth from smart people, all asking in one way or another, "What the hell is Turley thinking?!" it makes sense to think about the testifier in addition to his testimony.

Most non-professors, I suspect, imagine that professors on the same faculty know each other well.  We do not.  Especially in law, where the number of colleagues runs into the dozens (and at particularly large law schools like GW, it runs close to 100), one might not even meet all of one's colleagues over the space of many years.  I can think of many people (not adjuncts, mind you, of which there can be hundreds, but full-time colleagues) with whom I served at GW without ever even seeing them to know who they were.  They did not try to find me, and I never tried to find them.

I never formally met Jon.  He was usually off somewhere getting himself in front of a camera, so he was almost never around.  He was not, however, a completely absent colleague.  He regularly attended faculty meetings, where I did see him and occasionally interacted with him through the awkward medium of faculty discussions.  (That is, we never spoke to each other, but we might have referred to the other's comments.)  Once, he was getting off the elevator and I was getting on; and when the doors opened, we both smiled and said hello.  I will use that as my hook to refer to him as Jon rather than Turley.  Hey, we know each other!

So that is as much as I know about Jon personally.  I can say that he was not a "problem child," that is, one of those professors who monopolize faculty meetings.  Agree or disagree with him on whatever internal matter was under discussion, he was a good institutional citizen in the sense of seeming to care about moving the ball forward.

I suppose the one additional thing that I can add that sort of counts as insider knowledge is to respond to the widespread observation that he came off as, to put it in the words of someone who emailed me, "a pompous ass."  In particular, there was what one might call The Smirk Problem, or what I think of as Resting Smug Face (RSF).

Some readers might recall the sexist meme that erupted a few years ago when the actress Kristen Stewart (among others) was accused of having Resting B*tch Face (RBF).  Short of the infamous Martin Shkreli, I have not come across anyone who simply looks self-satisfied at all times in the way that Jon Turley does.  That, I think, is a matter of appearance, not a conscious decision on Jon's part.  I have seen him in faculty meetings with that look on his face when absolutely nothing was going on that would cause him (or anyone) to be feeling smug or self-satisfied.  It is a default.

The analogy to RBF is inapt in an important way, however, in that Kristen Stewart by all accounts is a perfectly delightful person, but when she refuses the sexist advice to "smile more, Sweetie, you'd have such a pretty face," her resting face happens to settle into something that can be perceived as unfriendly.  Jon, by contrast, was in fact being smug and self-satisfied on Wednesday; so it is actually a bit ironic that the one time that millions of people saw him (fulfilling his wildest fantasies of fame, I suspect), his default look matched up perfectly with a very unattractive attitude.  Yes, he "always looks like that," but this time, it was fitting.

To put the overall point differently, any of my colleagues or former colleagues could provide a few anecdotes about me, and those stories might be telling in one way or another; but it is accurate to say that none of my colleagues knows me very well.  I suspect that this is also true about Jon.

I can add, however, that because I had seen Jon on MSNBC many times before I moved to GW and continued to see him on various shows over the years (and because he was my colleague for so long), I formed more of an opinion about this particular talking head than I might have formed about, say, Rick Hasen or Jeffrey Toobin.

And that opinion -- again, based entirely on the public record, as it were, not personal knowledge -- is quite negative.  Professor Turley (returning to a formal title, because this is not in any way personal) is a media hound, second only perhaps to Alan Dershowitz in his apparent willingness to go onto any show and say anything, no matter how ill-conceived, if it means being on TV.  Being a witness at the biggest hearing in Washington in decades must have been a dream come true.

Consistent with his general approach, however, Turley showed up not with great arguments but with obviously carefully planned sound bites.  Mentioning his dog, likening the Democrats' case to "improvisational jazz," and saying that the case was "wafer-thin," were all clearly designed to grab headlines and to be replayed on the evening shout-shows, not to advance the legal understanding of the committee or the public.

Did he actually say anything of substance?  Mostly, he did not even try.  In fact, he seemed mostly content to give Democrats unsolicited political advice ("you're going to leave half the country behind" if Democrats "rush" the impeachment process), for which he is most definitely not an expert witness.  I recently re-watched a clip from the House hearings after the Mueller Report was released, where Trump attack dog Matt Gaetz accused the legal experts (who were there to discuss the legal implications of the facts presented in Mueller's findings) of not having any "direct, personal knowledge" of any of those facts.  On Wednesday, Turley decided to fritter away much of his time talking about neither facts nor law, instead arrogating to himself the role of campaign advisor to the Democrats.

This was probably smart, however, because when Professor Turley did try to talk about the topics on which he was there to provide expert testimony, he revealed an almost incredible lack of even minimal expertise.  As one anti-Trump commentator put it, "Even the Republican witness helped the Democrats."  He admitted that a quid pro quo -- if it could be proved (!!) -- is an impeachable offense.  He said that the case against Trump would be stronger if it included testimony from top administration officials, but that merely makes the case that Trump's refusal to let those officials testify is itself an impeachable act of obstruction.  He said that the courts are sorting this out, but that of course merely plays into the Trump/Republican strategy to run out the clock.

Probably the funniest aspect of Turley's sound-bite-in-search-of-a-hook approach to testifying was his comment about the "wafer-thin" case that the Democrats had put together.  This was related to his condescending comments about people being angry ("I get it: You are mad."), which is supposedly why the Democrats are foolishly rushing ahead.  But what is it about the case that he does not understand?

There is nothing wrong with a thin record.  If a prosecutor receives a one-page document, signed by a person saying, "I committed a murder," providing the date, time, place, and forensic details, that prosecutor would not need to be "mad" to proceed quickly with the case.  As Neal Katyal and Sam Koppelman put it yesterday: "The transcript Trump released is still the only evidence needed to impeach him."

Even when it is thinner than a wafer, devastating evidence is still devastating.  Or, as Professor Dorf quipped in conversation as we discussed these matters yesterday, Trump has provided "a confession written on a wafer."

But in fact, House Democrats did not rush headlong to impeaching Trump the day after the not-verbatim transcript of Trump's call to Ukraine's president was released.  Like any good prosecutor, they checked whether the confession was written by the person who purported to write it, they checked all of the details, and they talked to as many possible witnesses as they could.  With each step, the case simply became more damning.  Even without testimony from Vindman, Yovanovitch, Hill, or Sondman adding to the heft of the case, it was already a slam-dunk.

Turley, however, would have a prosecutor say, "You know, I've never had a case that was this easy to solve, and even though I've checked over and over for holes, I will continue to wait to indict because I have never indicted this quickly before."  What he seems to have forgotten is that sometimes simple cases are simple.  And telling the U.S. Congress not to pursue impeachment because Trump is too simple-minded to commit a complicated crime is simply absurd.

All of which makes me wonder what Turley could have been thinking.  He is not an obviously partisan MAGA guy -- although I would not take his statement that he did not vote for Trump at face value, given that this could simply mean that he voted against Trump in the primary but for him in the general (which would be a very "lawyerly" way for Turley to be dishonest).  Turley seems driven by personal vanity more than anything else, which makes him a lot like Trump but not in a way that would make them obvious soul-mates.  Egomaniacs are not looking for peers.

Long-time readers of Dorf on Law might recall my favored way of thinking about why a person would tell a lie or agree with a baseless argument.  Is this person, I ask, "naive, stupid, or evil"?  When I am feeling generous, I will change the words to "uninformed, illogical, or malevolent."  No matter the specific word choice, the idea is that some people are wrong because they simply lack the facts (naive), some are wrong because they cannot think straight (stupid), and some are wrong because they want to be wrong (evil).

Turley spends a lot of time on right-wing talk shows, so he might not have completely accurate facts; but that seems unlikely,  He offered nothing but illogical statements, but they seemed clearly to be deliberate deceptions, not a matter of being too stupid to understand basic reasoning.  That leaves "evil," but even if that is the explanation, there is no reason to think that he is trying to advance the evil that Trump's bigoted and authoritarian administration is trying to advance.  Sometimes, malevolence lies simply in putting one's own ego before all else.


Joe said...

Prof. Turley handled the defense for the last person removed by impeachment, Judge Porteous. So, his role here seems somewhat fitting.

I guess if not him, who. He comes off (I checked out his blog a few times in the past) a bit of a gadfly type that would do something like this. His blog suggests some sort of libertarian leanings that on an emotional level (since he brought that up) would find impeachment as "too tough" to use.

He told Congress that Porteous would resign anyway as a reason to show impeachment was not necessary. Note the Senate eventually disqualified him for further office (this happened only twice). Maybe, Trump can simply resign.

Joe said...

(twice before him ... once during the Civil War & not sure why in the other case)

Patrick S. O'Donnell said...

If I am not mistaken, and despite some of his historical narration, Turley seemed to being using contemporary criminal law standards by way of assessing the conceptual and legal integrity of possible articles of impeachment and did not display a facility with either fact patterns or patterns of conduct. Moreover, he seemed not to appreciate the constitutional relationship between Congress and the Executive branch, while according a superior or supervisory role to the Supreme Court thus ignoring, in the words of Garry Wills, that "[a]ll the highest powers of our constitutional system are vested in the Congress." Cf. too the following from Wills:

The idea of co-equal branches is supported by...[the following] myth [one of three such myths]: that the genius of the Constitution is a system of “checks and balances” between the three branches of government. The joint term is used only once in The Federalist, by Hamilton in No. 9, which praises “the introduction of legislative balances and checks” (emphasis added). He was not talking about the three branches, but about the checking and balancing between the Senate and the House within the legislative branch.

That is regularly the way Madison also used the term “check.” He envisioned Congress as so powerful that it could not be checked by the other branches: “The remedy for this inconvenience is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit” (Federalist No. 51). By “different modes of election,” he meant the arrangement that pertained before 1912 (when the Seventeenth Amendment passed; ratified in 1913) by which the state legislatures elected senators to Congress. By “different principles of action,” he meant that the Senate was to have power of the sword (declaring war, ratifying treaties) and the House was to have power of the purse.

Hamilton said the different principles came from the “aristocratic” aspect of the Senate. while the House should be “generally the favorite of the people” (Federalist No. 66). The same principle divided the House’s power to impeach from the Senate’s power to convict, making this the only check on its own predominance over the other two branches of government. As Hamilton put it in the same paper: “The same house [of representatives] will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them?” (emphasis added).

Madison thought the presidency would be so weak that he advocated giving it a veto on legislation. That made sense. The executive should have the right to protest if it is given laws too difficult to execute, or contradictory, or insufficiently funded. But when Congress has had time to consider the objections, it can overrule the veto, by a two-thirds majority (ensuring that it has done its work of deliberation). Again, if it comes to a last word, Congress has it. [....]

egarber said...

One thing that seems to have gotten lost:

There is an impeachable offense here, even without a proven quid-pro-quo or bribery.

The POTUS capriciously went after a U.S. citizen via the powers of his office, pressuring a foreign leader to take part – even offering up the U.S. Attorney General to help. It's all right in front of us, via the released call transcript.

How is that any different in kind than what Nixon did in going after political enemies? Leveraging the FBI, CIA, IRS…. No QpQ was needed to see that Nixon clearly abused the oath of office in this manner.

Don’t get me wrong. I do think there was a form of bribery at play here, but IMO, that isn’t the minimum bar. We already have plenty without “proving” that component.

1. Obstructing the Russia investigation – firing Comey, trying to get Mueller canned
2. Using the powers of the presidency to single out a citizen and solicit Ukraine's help (noted above)
3. Obstructing Congress with unprecedented blanket refusal to offer testimony / documentation