George Washington University law professor Jonathan Turley pushed back on Democratic Rep. Joe Neguse’s use of his works in the impeachment trial, saying he ‘appreciated’ the citation but that the lawmaker wasn’t exactly right to say he changed his position recently.
“Up until just a few weeks ago he was a recognized champion of the view that the Constitution authorizes the impeachment of former officials,” Neguse said, referring to Turley.
He pointed to Turley’s 1999 article “The Executive Function Theory, The Hamilton Affair, and Other Constitutional Mythologies.”
Discussing the impeachment of former Secretary of War William Belknap, who was out of office at the time his trial took place, Turley writes: “that resignation from office does not prevent trial on articles of impeachment. In this case, there was no need to impeach to protect the public from any additional harm or to assure the proper functioning of government. There was no ‘threat’ to the system in keeping an official in office, as advocates of the executive function theory often emphasize. Instead, the House impeached and the Senate tried Belknap as a political response to a political injury, a corrective measure that helped the system regain legitimacy” (emphasis from Rep. Neguse).
He also pointed to another article from Turley, also written in 1999, “Senate Trials and Factional Disputes: Impeachment as a Madisonian Device.”
Turley argued Belknap’s trial “was needed as a corrective political measure.” The matter of removal was not the issue, he said. “The Senate majority, however, was correct in its view that impeachments historically had extended to former officials, such as Warren Hastings.”
He added: “At a time of lost confidence in the integrity of the government, the conduct of a former official can demand a political response.”
“Future Presidents could not assume that mere resignation would avoid a trial of their conduct before the Senate,” Turley continued in the article.
“I agree with him,” Neguse said, “because he’s exactly right.”
But Turley, who was watching the trial live, responded immediately.
Turley linked to a recent article he wrote discussing how people are pointing to his past writings as proof he changed positions, but said “it doesn’t.” Additionally, he published a blog post in response to Neguse:
Recently, I wrote about how Laurence Tribe bizarrely claimed that “not long ago” I argued in favor of retroactive trials in reference to my Duke Law Journal article from 21 years ago. Now, the House managers have claimed that I supported retroactive trials up to a few weeks ago. Rep. Joe Neguse cited my Duke piece at length to support the basis for retroactive trials after saying that I supported such trials until the last few weeks. I felt Neguse did an excellent job in his argument but that statement is simply not true. His reliance on the Duke article is not misplaced. It is only his characterization of my position that was misleading. Indeed, if my views of 21 years ago are going to be cited as recent, I would at least appreciate the use of my thinner photos from the 1990s.
As I have previously written, I stand by virtually everything that I wrote on the intent behind the Belknap trial and the value of such condemnations. However, I have also written for years ago my own evolution on constitutional interpretation over the last three decades. I have certainly become more textualist in my views. Other cited scholars like Tribe have also evolved apparently in their views. There is nothing strange about such evolution in views of constitutional interpretation. Indeed, as scholars, we are ideally always evolving in our knowledge and our views. However, I still believe retroactive active trials have dialogic value and that this remains a close question. However, my default today is more textualist on the question. (Jonathan Turley)
In conclusion, he said he doesn’t “fault” the House managers for relying on his arguments from 1999 for defending retroactive trials. “I still believe that,” he wrote. “However, my textual views did not recently change. They have changed over almost three decades. Indeed, I have been criticized for my greater reliance on the text in such interpretations.”