Recently, Laurence Tribe bizarrely claimed that not so long ago I was in favor of retrospective litigation regarding my article in the Duke Law Journal from 21 years ago. Now the property managers have claimed that I supported retrospective trials until a few weeks ago. Rep. Joe Neguse extensively cited my Duke play to lay the groundwork for retrospective trials after saying that I have supported such trials for the past few weeks. I felt that Neguse did an excellent job of reasoning, but any suggestion of recent change would be wrong. However, his confidence in the Duke’s article was not misplaced. I have and continue to recognize the value of such trials – and certainly the historical uses of such trials. It is the question of jurisdiction that has changed for me. It is true that until a few weeks ago I had no reason to write publicly about the retrospective trial against Trump (like many scholars), but my underlying views have changed years before. However, if my views from 21 years ago are to be cited as new or “not long ago”, I would at least welcome the use of my thinner photos from the 1990s. To give you an idea of how “timely” this was, here is my picture when I wrote these words. I will now insist that it be used as the current image.
As I have already written, I stand by virtually everything I have written about the intent of the Belknap trial and the value of such retrospective convictions. The reasons I discussed are still powerful arguments for retrospective testing and make this a tight question on my mind. Where I’ve changed is the final question of jurisdiction. I have written for years about my development from constitutional interpretation to more textualism and formalism over the past three decades. See e.g. B. Jonathan Turley, Madisonian Tectonics: How Function Follows Form in Constitutional and Architectural Interpretation, 83 George Washington University Law Review 305 (2015); Jonathan Turley, A Fox in the Hedgerow: Vermeule’s Optimization of Constitutionalism for a Sub-Optimal World, 82 University of Chicago Law Review 517 (2015). Therefore I have certainly become more textual in my views and have discussed developments over the years. Other scholars quoted, such as Tribe, appear to have evolved in their views as well. There is nothing strange about such a development in relation to the interpretation of the Constitution. As I dealt with the textual issues raised by this recent impeachment controversy, I advocated the same textual and formalistic view. Again, I still believe in the values of retrospective testing and that this remains a narrow question. However, my standard remains more textualistic on such issues, and I believe the text speaks against retrospective judicial proceedings.
In my 1999 Duke Law Journal article on impeachment, I wrote: “[t]However, the Senate majority rightly believed that impeachments have historically been extended to former officials like Warren Hastings. “See Jonathan Turley, Senate Trials and Faction Disputes: Impeachment as a Madisonian Device49 Duke Law Journal 1-146 (1999) (emphasis added). While some have quoted this line to show that I have changed my position on the matter. It doesn’t. It has actually been used retrospectively as a historical matter in the UK, which I have always acknowledged. However, there are significant differences in the application of impeachment in both countries. In fact, the colonial impeachments were strikingly different in many ways. As I noted in the Duke’s article, “Even if the only punishment is disqualification from future office, the open presentation of evidence and witnesses is exactly the element that was missing from colonial impeachments.”
We are left with the value of a trial for public judgment on past conduct and the cost of a retrospective trial on the constitutional system. That has remained unsolved. The previous discussion was about how impeachment plays some kind of dialogical role in our society. Such attempts, as with Trump, can have value. However, there are also serious compensation costs that are equally evident in Trump’s case. The Trump impeachments forced us to address new precedents for the ramifications of the procedure used in both impeachments. Here is exactly what I said:
“If impeachment were merely a matter of elimination, the argument for jurisdiction in the Belknap case could easily be cleared against a hearing on the matter. However, the Senate majority rightly held that impeachment had historically been extended to former officials such as Warren Hastings. As Edmund Burke has shown, impeachment serves a public value when it comes to addressing behaviors that conflict with the core values of a society. At a time of loss of confidence in the integrity of the government, the conduct of a former official may call for a political response. This impeachment response may be more important than a legal prosecution response. Regardless of the outcome, the Belknap process looked at the underlying behavior and confirmed the Core Principles at a time when confidence in the government was waning. Without such a process, Belknap’s rush to resign would have been able to prevent any political corrective action to counter the damage to the system caused by his behavior. Even if the only punishment is disqualification from future office, the open presentation of evidence and witnesses is exactly the element that was missing from colonial impeachments. Such a process has a political value that runs vertically in response to the public and horizontally as a deterrent to the executive branch. “
My Duke article can be fairly quoted for this view in order to support arguments for retrospective testing. These attempts clearly mean that impeachment was not viewed as just a matter of removal. The officers were already gone. It is also unassailable that such retroactive impeachments have taken place in the past. After all, there is no question that an official resigning could rule out political corrective action. None of this has changed, in my opinion, and I have addressed these points in the current controversy.
In the last 30 years of the Scriptures, and later as a senior counsel in an impeachment trial, I have found that departures from the language of the Constitution have often resulted in greater risks and costs. In this sense, I’ve become more textual. I have discussed this trend in my writings for the past three decades. It doesn’t change my view of the importance of a major felony or misdemeanor. This is just a matter of the Senate’s jurisdiction. If I were to write the Duke play today, I would still argue that it shows how impeachment procedures serve this dialogical role, but that I would speak of the three out-of-the-way decisions in Blount (and the view of roughly half the Senate) agree in Belknap). It was historically legal, but I think it’s constitutionally not sound. That view against retroactive impeachments is reinforced by what we saw in the two Trump impeachments.
Therefore, I do not fault the property managers’ reliance on the Herzogstück to support the value of retrospective legal proceedings and the historical defense of such legal proceedings. I still believe that. However, my more textual views haven’t changed recently. I don’t think Rep. Neguse was deliberately misleading. I understand that he was referring to my recent papers on the impeachment of Trump. However, I wanted to correct the suggestion as untrue and find that my underlying views had changed years earlier.
Update: A recent article pointed out that my earlier reference to “drilldown” on the subject meant that I was in favor of a broader interpretation of constitutional language until a few weeks ago. The publication never asked for an explanation, but the suggestion is wrong. I said that in the second Trump impeachment, I gave an overview of the history and the implications for this particular topic. (“The Trump impeachments will force us to set new precedents for the implications of the process used in both impeachments. I’ve spent a lot of time looking at this over the past few weeks.”) I discussed how this was a close one The question was, how my longstanding views favored such a narrower interpretation. My objection to the property managers was the suggestion that a few weeks ago I changed my view of the interpretation of the Constitution just because I recently wrote about this specific controversy. My underlying interpretive views changed a long time ago.