This impeachment charade has become little more than a circus. And just when you think it could NOT get any wilder, it gets wilder and crazier. And most legal experts STILL maintain there is no Constitutional basis on which to justify it!
Who do we trust to explain it’s justification or lack thereof? Most of us are not attorneys. And just a handful of attorneys are actually legal “experts.” So here’s what we did:
There are two real experts on the Law that we have turned to for some non-emotional insight. Both are Democrats and neither voted for Donald Trump. Call me “Stupid,” but I think both Alan Dershowitz and Jonathan Turley have proven through the years they’re each “middle-of-the-road on Constitutional law. We related Dershowitz’s perspective on this impeachment trial several days ago. Today, we turn to Jonathan Turley to try and shine a light of reason on the circus in the Senate Chamber.
The “Turley Perspective”
The second trial of former President Donald Trump is shaping up to be a curious exercise designed more to enrage than convict. While legal eagles will be analyzing every move, what citizens really need is a Philadelphia Eagles fan to understand what is unfolding. In the NFL, it is called “tanking.” This year, there was a raging debate whether Eagles coach Doug Pederson was actually trying to win or just losing convincingly to secure a better draft pick. The House trial strategy has every indication of a tanked trial, but few are noting the glaring lack of a credible offense.
When it comes to football, tanking allegations arise when the inexplicable speeds along with the inevitable. That point was reached this season when Pederson decided not to tie the game against Washington in the third quarter with a field goal and instead put Nate Sudfeld in the game over Jalen Hurts. The House may have reached that point when the managers seemed to be trying harder to make a better case for losing than winning. That was driven home by the selection of such managers as Rep. Eric Swalwell in the wake of his scandal with a Chinese spy. Sending in Swalwell, who has also been accused of reckless political rhetoric, made the Sudfeld substitution look like sheer genius.
The snap impeachment
The first indication was the use of what I have called a “snap impeachment.” The House wanted to impeach the president before he left office, which was perfectly constitutional. I have long maintained (as I did as a witness in the first Trump impeachment hearing) that the House can legitimately impeach a president on his very last day in office if it has evidence of a high crime and misdemeanor. However, after Jan. 6 the House had time to hold hearings (even if only for a day or two) to create a record supporting impeachment. The House leadership refused despite the urging of some of us that no impeachment had ever been submitted with no record of a hearing, investigation, or formal opportunity for a president to respond.
The House made it easy on those seeking acquittal. It could have crafted an article that would appeal to broader bipartisan support. Instead, it sought the most extreme language alleging incitement to an actual insurrection — virtually guaranteeing a partisan vote and likely acquittal.
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The House also included language that only strengthened the expected challenge facing the House in seeking a trial for a former president. The article declared Trump “has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office.” Yet, the House was virtually certain that he would already be out of office when he came to trial. The language magnified concerns over the constitutionality of retroactive trials. Not only does the Constitution refer to the trial as deciding whether to remove “the President” but the article itself refers to the purpose of such removal to protect the nation. While the article mentions disqualification from future office, the article is crafted around an urgency that would become a nullity in a matter of days.
Then nothing happened
What occurred next was familiar to NFL fans suspicious of tanking. Nothing happened. The House made it to the endzone of a Senate trial and then stopped on a dime. The House demanded witnesses in the Senate but then let weeks pass without calling any witnesses that would be relevant to proving Trump’s intent or state of mind. It could have created a public record and locked in testimony in case the Senate, as expected, declined to call witnesses or severely limited witnesses.
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The House brief in the Senate further highlighted the lack of direct evidence on Trump’s state of mind. It laid out an emotionally charged but legally incomplete case for the Senate. To convict, the House needs to show Trump was more than reckless. It crafted the article as inciting an actual rebellion or insurrection, not mere negligence. Instead, the House plans to show clips of damage and interviews with rioters to show how Trump’s words were interpreted rather than intended. The thrust of its case is a parade of horribles from that day, a narrative that will harden the minds of many but change the minds of few. Without such evidence, the Trump team will be able to hammer away at similarly reckless rhetoric used by Democrats, including members of the “jury.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.