Below is my column in Hill on the second Trump process and how core values quickly became foreign to the purpose of that constitutional process. The final chaos started by Rep. Jaime Raskin (D., Md) has only highlighted the procedural and legal irregularities in a process that seem increasingly detached from values such as due process.
Here is the column:
In the 1946 film Gilda, Rita Hayworth provided perhaps the ultimate line of film noir. Looking at her former lover, she stated, “I hate you so much that I would destroy myself to take you with me.” Hayworth made self-destruction sound positively tempting. This line came to my mind as I watched impeachment managers and Democratic senators systematically reject core values that once defined fair trial – and American values - in the Constitution.
When Donald TrumpThe defense attorney complained that he was not given due process in the house. The managers shrugged and said that due process was not required. When the defense objected that Trump’s January 6 speech was protected by the First Amendment, the House mocked that freedom of speech was not only inapplicable in impeachment, but “frivolous”. Nothing seems so sacred that it cannot be dismissed in the pursuit of Trump. Time and again it has been made clear that his trial is about judgment, not our constitutional values.
Even if the acquittal was virtually certain, there was no room for constitutional subtleties like freedom of speech or due process. There was only one issue – the same one that has been driving our media and politics for four years: Trump. During this time, some of us have complained that extreme legal interpretations and biased reporting destroy our legal and journalistic values. It wasn’t done out of love for Trump: I voted against him in two elections and regularly denounced his actions and rhetoric, including his January 6 speech. However, I value our values more than I dislike them.
Because of this, Trump’s second impeachment trial was fought with a film noir surge that shared the same “lost innocence,” “sharp-edged cynicism,” and “desperate desire” of this genre of film – most obviously when the house’s managers got through due process rejected impeachment proceedings. It is undisputed that the House could have held hearings for at least a few days and still indict Trump before he resigned. It was known that the Senate would not hold a trial before his term was up, so he had until January 20 to indict him. This happened on January 13th.
A hearing would have given Trump a formal opportunity to respond to the allegation against him; No one has ever been charged without such an opportunity. It would have allowed witnesses to be called (including many who have already spoken publicly) to keep even a minimal record of the trial. However, the House refused, and then refused to call a dozen witnesses with direct evidence for more than four weeks to keep a record even after his removal from office.
So the House could have afforded a basic procedure, but chose not to just do it because it doesn’t have to. When faced with this in the Senate, a house manager mocked the notion that Trump should be given more fair trial. Representative Ted Lieu said: “Trump will get all the lawsuits that are due to him.” A frightening answer as Trump didn’t receive one in the house. There was a time when failing to go through due process would have been shocking. Even if you believe that due process is not required in the event of impeachment, it is expected. We don’t afford proper practice for people just because we have to.
It’s like decency, courtesy, and other values. They are not observed because they are mandatory, but because they are correct. It is a value that defines us and our actions. In addition, it is a constitutional preservation process. Denying a fundamental constitutional value for one’s defense is like burning down a house in the name of fire safety. However, the position of the House is that a President can be tried and tried without a record of a hearing, investigation or witness.
Then came the question of freedom of speech. Trump’s defense argued that it was inherently wrong to indict a president over a speech protected by the First Amendment. The property managers cited a letter from law professors declaring the argument “frivolous,” even though some of those professors believe that Trump’s speech in cases like Brandenburg v. Ohio may indeed be protected.
It is important to understand how such language will be considered protected by the courts if it is to be treated as a violation of the Constitution for the purpose of impeachment. Just as courts weigh the value of prosecution against the impact on freedom of expression, the Senate can strike the same balance in impeachment proceedings. Even if you feel that the first change does not apply in the event of incitement, you still need to decide whether it is incitement or freedom of speech. However, in a letter spinning in circular logic, the professors stated that “the first change does not apply” to impeachment proceedings. At least not in a trial against Trump.
The property managers were asked why they did not bring a case with certain elements of incitement as set out by the Supreme Court. Chief Executive Officer Jamie Raskin blessedly said that this case and Trump is a one-off case of “inciting the President” with its own ill-defined elements. In other words, it doesn’t have to fit the definition of incitement. Using that logic, the House could have indicted Trump violations of the Endangered Species Act, stating that it should not affect endangered species.
This impeachment process captures our age of anger. For four years, people demanded total impunity to abandon legal or journalistic standards. They claimed that attacks on free speech, due process or media objectivity were noble in the prosecution of Trump. You can be celebrated for tossing such values aside in order to get it. A few years ago, a process without direct evidence, due process, or clear standards would have been considered wrong. However, this is a test of Trump, and many have allowed Trump to define them more than their values. Like “Gilda”, they are ready to destroy their values in order to destroy him.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and has served as the last senior attorney during impeachment in the Senate. He was called by the House Republicans as a witness at the impeachment negotiations of Bill Clinton and Donald Trump and has consulted with Senate Republicans on impeachment legal precedents prior to the ongoing trial. You can find him on Twitter @JonathanTurley.