Who Has the Power?

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6 mins read
Supreme Court, White House, and Congress
Photos from Wikimedia Commons.

This is mostly an analysis of Turley’s testimony (yesterday’s Republican witness).

Bonus: This post will help prepare you for the Constitutional Law portion of the Internet Bar Exam.

The testimony of Feldman, Karlan, and Gerhardt is easily summarized: They believed that Trump’s behavior was impeachable and dangerous.

In fact, Gerhardt said if Trump’s behavior isn’t impeachable,
“nothing is impeachable.”

One way to understand impeachment is that it’s about the balance of power between the executive and legislative branches. 

If impeachment and removal are too easy—if the legislature can remove a president at will—the president becomes beholden to Congress.

If impeachment is too hard, the office of the presidency becomes too powerful and there are no real checks on presidential power.

The Constitution specifies that the House as the sole power to impeach, and the Senate has the sole power to remove.

Each of Turley’s arguments had the effect of basically removing the impeachment power from Congress, or wearing Congress with respect to the Presidency.

For example, Turley argued that the DOJ [meaning Barr] came to a conclusion about obstruction in the Mueller report, so that should be the end of it.

Because neither Mueller nor Barr recommended impeaching based on an obstruction charge, Turley said there wasn’t enough evidence for Congress to move forward.

But this gives the power to decide whether behavior is impeachable to the executive branch. 

Allowing the DOJ to decide means that the president would be able to appoint (and supervise) the people who decide whether he should be impeached.

This torpedoes checks and balances and separation of powers.

Turley also pointed out that there are holes in the Democratic case against Trump. The reason, of course,  is so many witnesses with direct knowledge of the facts are refusing to testify.

Turley concluded that Congress must wait for the matter for the courts to decide.

This means that the courts get to weigh in on whether the president should be impeached.

The problem, of course, is that the Constitution gives the sole power of impeachment to Congress.

The Constitution doesn’t require Congress to share this power with the courts.

Turley said the president has the “right” to take his case to the courts.

This allows the president to say, “I want the courts to decide whether my behavior is impeachable instead of Congress.”

The drafters of the Constitution considered giving the power to remove the president to the judiciary branch, but decided against it.

The president, then, doesn’t get to appoint the judges who decide whether he should be impeached.

Allowing Trump to take his case to the courts permits the president to slow the pace, which gives him some control over the impeachment process.

Turley also argued (absurdly) that impeaching for obstruction of justice without waiting for the courts to issue their rulings is “abuse.”

But the elements of obstruction of justice do not require a court order.

This is one place where Turley got actual facts wrong, instead of just presenting constitutional theories which are disputed by the other 3 experts and these authors:

Turley’s arguments are in keeping with the Unitary Executive Theory currently favored by Republicans. 

(Aside: the GOP doesn’t talk about the unitary executive theory when the president is named Clinton or Obama.)

It’s one thing to quarrel with Turley over how the Constitution should be interpreted, and how the Constitution requires balance of power to be allocated.

I think Turley (and the Unitary Executive Theory) is wrong, and that most people will see it.

The problem is not difference of opinion on Constitutional law (and how to evaluate crimes).

The problem is that the Republicans spent most of yesterday’s hearing waging war on truth itself.

Their objective seemed to be to try to confuse people. For example:

As I’m sure Gaetz knows (he went to law school) fact witnesses testify about facts. 

Expert witnesses give opinions about the facts. They don’t have direct knowledge of facts.

Then there was that moment when Rep. McClintock demanded to know which witnesses supported or voted for Trump, which smacks of totalitarianism, and implies that only people who voted for Trump can say whether or not he should be impeached.

These tactics don’t make sense, and they are not intended to make sense. 

They are intended to confuse and disgust people. 

This indicates that the Senate trial will not be a normal dispute over the law and what actually happened.

What will be on trial will be truth itself.

Originally posted on MUSING ABOUT LAW, BOOKS, AND POLITICS.
Re-posted with permission.


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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and CNN.com. Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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