That's Some Catch!

Jonathan Turley’s testimony was so inconsistent it contradicted his own previous statements on impeachment. https://t.co/K29qeVwjEe

— Joan Walsh (@joanwalsh) December 5, 2019

So Jonathan Turley was on NPR this morning (his 15 minutes aren't up yet?) and it seemed to me his argument got even weaker.

Basically, his argument is that the President can't be guilty of obstruction of Congress or of justice because Congress has not exhausted all the remedies available to it, viz., a Supreme Court ruling on each and every subpoena Congress has, or needs, to issue to every witness in the Administration with information about the alleged impeachable offenses.

First, Mr. Turley is aware appeals to the Supreme Court may not be disposed of until June of next year.  By then, of course, the GOP will cry foul because November will be a mere four months away, with the August recess intervening, and how can the Democrats interfere with the people's right to vote by trying to impeach and remove Trump from office before then?  But his argument is even more curious.

Consider:  the FBI comes to you seeking material information about a crime.  You decline to cooperate.  Must the FBI go as high as the Supreme Court and then you refuse to follow that court's order, before it can charge you with obstruction of justice?  Of course not.  But by Mr. Turley's argument the President either resides in a special place vis a vis the laws on obstruction, or the Congress is singularly weak in its ability to conduct investigations of the Administration.

Robert Mueller found multiple counts of obstruction against Donald Trump.  Not once did Mueller go to court to seek enforcement of a subpoena against a member of the Trump Administration; yet Mueller alleges obstruction did occur.  What madness is this?  Mustn't Mueller go to court, to the Supreme Court if necessary, on each and every such count before establishing even the allegation of obstruction?

Of course not.

Congress does not have the power of an Art. III court to enforce its own subpoenas; and that is a valid check on the power of Congress to compel testimony, one rooted in the fact courts can only subpoena witnesses when there are live controversies before it.  Even the FBI can't issue subpoenas on its own authority; but it can charge you, in court, with obstruction for failure to cooperate, or to be truthful in your answers.  It doesn't have to subpoena you first, and prove it used every effort the court provides to compel your answers and cooperation; especially because, absent a grand jury, there is no entity of competent jurisdiction which can compel testimony in an investigation.  Except Congress, and only then, through the courts.

But there is no presumption that you don't have to testify until the last court available says you must.  And there is a legal presumption you are hiding something when you refuse to cooperate, rather than stand on your 5th Amendment rights.

Turley, in other words, continues to be an ass whose arguments are self-refuting.  In fact, I used his arguments this morning to explain how a process analysis could be used to analyze an argument that otherwise requires arcane knowledge to follow.  You don't need to be a law professor to see that Turley's base argument (no impeachment without a crime, no crime without compliance with the standards of a court of law, which means no crime without a criminal trial; and since DOJ can't charge a POTUS with a crime, impeachment is, by Turley's argument, an impossibility.  Which means the Constitution contains an impossible clause that is void as a matter of law.) leads to an impossible outcome as the consequence of a simple process analysis (How does this work, v. why does the law require something).

I'll have to explain that another time....