Prof Turley, witness for the GOP,
I will use a legal term that I partially understand to “stipulate” that you have significantly more legal experience than me. I do not have a law degree, never practiced law, and only have experience with living under the law. To be specific, I have served on trial juries, one of them a criminal case, and I served a one year term on a Civil Grand Jury.
That being given as full disclosure, I assert that your argument that the compelling of testimony, in particular via subpoena, must go through the judicial process, ultimately the Supreme Court before it can be enforced.
Now I may not have formal legal experience and training but I do have extensive experience in making software and associated hardware work properly, i.e. I can see bugs.
To your argument. It all sounds good that the judiciary must somehow be a “check” on Congressional power otherwise it could be abused. Really? We will skip over the case of “Benghazi!!! Benghazi!!!” and go straight to the bug in the core of your logic.
Congress has two oversight and take-out-the-garbage powers. First, they can discipline and expel any of their members, mainly for ethics or criminal behavior. A case is made before the body, House and Senate are separate, and if expulsion gains a 2/3 vote (Article 1, section 5) they are gone, out the door. Members are also not immune from prosecution for crimes; the most recent one being Laura Richardson (D) in 2012. Ten Senators from the seceding southern states were expelled in 1861. Most often the conviction precedes the expulsion.
The other is impeachment, the argument today. Impeachment only applies to the Executive and Judiciary (the Article 2 and 3 guys — still mostly guys...). Article 1, Section 2, Clause 5 is very clear:
The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.
and
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
That is it. Also note that both clauses contain the word sole. There is a reason for this. Although impeachment and trial has been rare, and the impeachment of the President is rarer still, only three times before today. But being rare does not make it not critical. Both of these clauses define all there is in the Constitution about the process. The rest is conjecture and, at the time, procedural “stuff”. Note also that the only mention of the Judiciary in these clauses is that the Chief Justice would preside, i.e. be the trial judge, only during the trial of the President.
To the bug. The conditions in the current case against Trump are clear. Congress is exercising its powers and the Executive from top to bottom is refusing to cooperate per direction by the President himself. Pretty clear. Prof Turley asserts that to break that deadlock, the judiciary must become involved and make the final decision with regard to what the Congress can do. He somehow asserts a Judicial authority and standing in impeachment. Going past what I cite above, there is nothing in the Constitution (it would be somewhere in Article 3 one would suppose) that even mentions impeachment or a role in the process. The question is why? I can’t speak to what the Founders thought but I suspect they saw the bug too.
Assume that the case before us today is not the President but a member of the Court, specifically the Supreme Court. Assume that accusations have come forward against one of the members that rise to the level of impeachment; perjury, bribery, witness tampering for example. There have been a number of Federal Judges who have been impeached and removed for such behavior (and worse). However, this case directly touches the Supreme Court. Congress, through its process, starts its process and issues subpoenas to individuals including members of the Court’s staff. The Justice resists the inquiry and insists on Turley’s assertion. The Congress assents and goes to court. It is a no-brainer to assume that issue would end up before the very court on which the accused sits. There is no rule or law that asserts that a Supreme Court justice must recuse him/herself. In short, the accused Justice would decide his own case. Further, (s)he can influence or call on favors of associates to rule against Congress.
That is the bug. According to Turley, Congress “may” impeach the Executive, specifically the President, but it cannot impeach the Court. Why? Because the Court can say no. However, if this were true, would not the Framers have added further language to the Constitution to handle the special case when an impeachment of a member of the Article 3 branch is involved? The answer is simple. Not only do they not have language, which translates into process, they explicitly state that the House has sole power to impeach and the Senate has sole power to try. In other words, unlike Turley, who is alleged to be the GOP’s best Constitutional expert, when the Constitutional language states sole, that means “shall”, not “may”.
In the software business we call such a logic error a “deadlock”. In software, when two separate processes need to share access to something, i.e. assert control over, there is a “lock” on that something and each process must acquire that lock before access. There are cases where that control breaks down. I won’t go into detail here but the ordering and priority over locks must be carefully designed. In this case, Congress wants to assert control of evidence and testimony and the other asserts control as well, i.e. to deny access. The case of Congress vs. Executive, having the Judiciary involved does appear to be harmless. However, in the case of Congress vs. Judiciary, deadlock predictably occurs, resulting in everything coming to a screeching halt, requiring extraordinary intervention, usually a “crash” followed by a “reboot”. The Framers saw this and provided sole power to Congress. In software terms, for this to work, Congress owns the lock.
Turley’s case falls apart.