Jonathan Turley on Lawrence Tribe

 Here is Jonathan Turley assessing Lawrence Tribe's changing positions on impeachment and associated conviction o Presidents.

The message for me is that Lawrence Tribe is an example of how emotion can overwhelm intellect and that a Ph.D. or being an Academic does not imply sensible opinions or rational behavior.

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Harvard Professor Laurence Tribe was on CNN last night reassuring viewers that the Constitution clearly and unequivocally allows for the trial of a former president. In what has become a signature of Tribe’s commentary, he declared any contrary view as “stupid” while engaging in gratuitous personal insults. I have previously written about Tribe’s past personal attacks on those who hold opposing political or legal views. While such attacks thrill many on social media, it should have no place among academics. What is more notable however is how Tribe’s views have changed since the Clinton impeachment when we testified at the impeachment hearing of constitutional experts. While he once questioned whether Bill Clinton could be impeached for a murder unrelated to his official conduct, Tribe has suggested that Trump could be impeached for a tweet alleging criminal misconduct by Barack Obama.

What is striking is Tribe’s claim that this is neither a close nor a credible question. As with his past assertions on Trump crimes, Tribe declared that the Constitution is clear and any argument against trying ex-officials is “stupid.” Many scholars who have reached conclusions on the issue, including myself, have stressed that this is indeed a close question for them. There are a variety of opinions but most academics recognize that either interpretation is credible. For example, Professor Cass Sunstein sees strong arguments on both sides and agrees that the answer is not clear. However, he believes that the House cannot impeach a former official but the Senate can probably convict one. Tribe however has been assuring the public that the question is clear and any opposing views can be dismissed as nonsense.

While Tribe raised how my own views have changed from “not long ago” in reference to an article written 21 years ago, they have not changed nearly as much as those of Tribe in that “brief” time. Tribe’s own evolution is rarely discussed beyond conservative legal sites. Tribe previously adopted extremely narrow legal interpretations when asked about the alleged crimes or impeachable offenses of figures like Bill Clinton. However, he has adopted broad interpretations in justifying prosecution or impeachment of Trump from issues like emoluments with the same assurance of clarity and certainty (despite opposing rulings from various courts). He was calling for impeachment from the earliest days of the Trump Administration. That includes impeachable tweets.

In March 2017, Tribe slammed Trump for saying that his campaign and Trump Tower was wiretapped or surveilled by the FBI. It turns out that the FBI in the Obama Administration did in fact conduct surveillance on the campaign after universal refutation by many in the media. Tribe however insisted that Trump could be impeached for the tweet, stating “Using power of WH to falsely accuse [Obama of an] impeachable felony does qualify as an impeachable offense whether via tweet or not.”

So just tweeting an accusation against a political opponent is an impeachable offense since it was done from the White House. Tribe is also quoted in another interview in saying that the campaign finance violation allegations brought against Trump lawyer Michael Cohen are “serious crimes” and, if Trump is not indicted, the Congress can still bring impeachment proceedings against him based on Cohen’s allegations: “The alleged crimes make Trump impeachable. But whether and when the House should proceed to impeach is a complex judgment call.”

That is in sharp contrast to Tribe circa 1998.

Both Tribe and I testified in the Clinton impeachment where Tribe maintained that the Constitution was clear and that Clinton could not be impeached for the felony of perjury. Democrats agreed (as did a later federal judge) that Clinton knowingly committed perjury under oath, but Tribe insisted that impeachment was simply not that broad. In an ironic foreshadowing of Trump’s claim that he could shoot a person on Fifth Avenue, Tribe even questioned whether a president could be impeached for a murder separate from his executive duties. In addition to categorically ruling out the perjury crime as impeachable, Tribe questioned if other crimes like bribery would be impeachable despite its direct reference in the constitutional standard. Tribe said that if Clinton bribed the judge in the Paula Jones case “it would impair, surely, and shed negative light on his integrity, his believability, his virtue, but it would not make [serving as president] impossible” under the Constitution.

Tribe cautioned against unnecessary impeachments and said that Congress should rely on the availability of later criminal prosecutions:

Removing a President, even just impeaching him, paralyzes the country. Removing him decapitates a coordinate branch. And remember that the President’s limited term provides a kind of check, and if the check fails, he can be prosecuted when he leaves. To impeach on the novel basis suggested here when we have impeached only one President in our history, and we have lived to see that action universally condemned; and when we have the wisdom not to impeach Presidents Reagan or Bush over Iran-Contra; and when we have come close to impeaching only one other President for the most wide-ranging abuse of presidential power subversive of the Constitution would lower the bar dramatically, would trivialize a vital check.

That would also seem to be true when you are maintaining that there is an open and shut case for criminal incitement.

Tribe in 1998 rejected even criminal bribery and perjury (and possibly murder) as impeachable offenses in opposing the impeachment of Bill Clinton. Now however he believes that a tweet can be impeachable if made from the White House or apparently a campaign finance violation that occurred before inauguration. The tweet is particularly interesting since Tribe stated in 1998 that there must be a certain leeway given to partisan decisions and statements for a president: “letting partisan considerations affect one’s decisions, for example, is always an impeachable abuse of power in a judge. Almost never would it be in a President.” While Tribe has occasionally referenced his previous nexus to official functions, he is also for these alleged impeachable offenses that seem far more attenuated than perjury or bribery committed while president.

The same is true with Tribe’s obstruction analysis. In 1998, he opposed impeachment which included an obstruction charge against Clinton, including conduct taken while in office. Now, however, Tribe has advocated both prosecution and impeachment on a myriad of poorly defined obstruction theories despite the failure of Special Counsel Robert Mueller to find evidence of intent to obstruct.

It is also true with witnesses. Tribe criticized Judge Norma Holloway Johnson for ruling that Monica Lewinsky would have to meet with the House managers or forfeit the immunity from prosecution negotiated last year with Starr. Tribe insisted that the order may have violated the doctrine of separation of powers — a highly dubious constitutional interpretation. Tribe was not a vocal supporter of witnesses in the Clinton impeachment but has been a vocal supporter of such testimony against Trump, even after encouraging the abbreviated impeachments by the House in both impeachments. He praised the brilliance of Speaker Nancy Pelosi in pushing for impeachment without witnesses in the Judiciary Committee under the claim of urgency and then waiting weeks to send over the articles of impeachment. (Tribe insisted it gave the Democrats an edge in forcing witnesses, which of course it did not). I supported witnesses in all of the impeachments. Indeed, the failure to call Lewinsky resulted in key evidence not appearing at trial. Lewinsky later alleged that Clinton called her to get her to change her testimony.

In the end, my main objection to Tribe’s analysis is not simply his personal or ad hominem attacks. It is the other consistent element: certainty. In the Clinton and Trump impeachments, Tribe regularly claimed clarity and certainty on issues that have divided academics. Appearing on CNN, Trump regularly assures viewers that opposing positions are stupid and nonsensical and personally attacks both political and academic figures. That undermines what is an important national debate. In virtually every interview I have given on retroactive trials, I have noted that this is a close question upon which academics disagree.

P.S.: For the record, I should note that Tribe personally attacked me in the interview as a “hack.” It is sad that such a personal attack is no longer remarkable for Tribe. Tribe has called Trump a “terrorist” and supported a long litany of highly dubious criminal theories. He previously told CNN that “If you’re going to shoot him, you have to shoot to kill.” Tribe called Senator Mitch McConnell a “flagrant dickhead!” and loves to use Trump-like insults like “McTurtle” to refer to the Senator. He later ridiculed former Attorney General Bill Barr for his Catholic faith. His account has been described by critics as a “vector of misinformation and conspiracy theories on Twitter” where Tribe regularly engages in vulgar attacks on people holding opposing views. Tribe thrills his followers by referring to Trump as a “Dick” or “dickhead in chief.” Such slurs and invectives are all ignored when Tribe is offering consistent assurance that Trump can be prosecuted or impeached on an ever-expanding list of offenses. Indeed, the only time Tribe generated a modicum of criticism from the left was when he referred to the selection of an African American like Kamala Harris for Vice President as a merely “cosmetic” choice.

On the substantive issue of retroactive trials, Tribe said that I “wrote the very opposite not that long ago.” What Tribe called “not long ago” was in fact over two decades ago. He is referring to a brief discussion of the trial of William Belknap after he resigned as Secretary of War in a long work on the history and function of impeachments. In my 1999 Duke Law Journal article on impeachment, I wrote that “[t]he Senate majority, however, was correct in its view that impeachments historically extended to former officials, such as Warren Hastings.” See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke Law Journal 1-146 (1999)(emphasis added). Some have cited that line to show that I have changed my position on the subject. It doesn’t. It indeed was used retroactively in Great Britain as a historical matter, which I have always acknowledged. I was explaining that the Belknap trial obviously shows that these trials were viewed as having a value beyond removal as a condemnation of wrongdoing and disqualification from future office. That is obvious since Belknap was no longer in office. I still believe that. I have explained how my views of constitutional interpretation have evolved over the last 30 years, but my views on the standard for impeachment have not changed significantly.

It seems like the rage of social media has corrupted such dialogue for some academics where the preference is to engage in gratuitous attacks and exaggerated analysis. As academics, we can regain a degree of civility and substance in our national dialogue by example. We can trade insults like school children or engage in a passionate but deliberative debate. That may sound naive or even “stupid” to some. However, it is the very thing that distinguishes intellectual from visceral discourse.