Warren Hastings and the Historic Foundation for Retroactive Impeachments [Updated] – Thelegaltorts

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Warren Hastings and the Historical Basis for Retroactive Impeachments [Updated] – JONATHAN TURLEY

It sometimes seems that every impeachment road leads back to Warren Hastings.  Previously, I wrote about Hastings in addressing the bribery theories being voiced by Democratic leaders and legal experts in the first Trump impeachment. Now Hastings is back as a historical precedent for the impeachment of former officials.  As I have repeatedly noted, there are good-faith arguments on the use of impeachment for former officials. However, Hastings is not particularly strong precedent beyond the obvious point that impeachment was used retroactively in Great Britain.

I have only written a few lines on retroactive impeachments over the last 30 years over hundreds of pages of writings on the subject. It simply has not been an issue for the United States after the Belknap case.  My prior interest in the Hastings case was to note that impeachment trials have a certain “dialogic” value for society and to contest the “executive theory” argument on impeachments.

As I previously wrote, Warren Hastings was Britain’s governor-general in India who was despised by some in the Parliament, including his greatest detractor Edmund Burke. Burke called him the “captain-general of iniquity” and a “spider of Hell.”  He later added the label of a “ravenous vulture devouring the carcasses of the dead.” Burke lead the impeachment of Hastings, who was arrested in 1787 by Parliament’s sergeant-at-arms.

Hastings was charged by the impeachment committee with bribery and other forms of abuse of power. The case dragged on for seven years before Hastings was acquitted on every article of impeachment. Even though Hastings did have some dodgy personal financial dealings, his impeachment today is widely viewed as an injustice, and Burke was ultimately censured for his “intemperate” rhetoric.

There are many aspects of the Hastings trial that were rejected as abusive and certainly would not be tolerated in the United States. The Hastings trial is undeniably relevant since he was tried after leaving office. However, it shows how this practice can be used for raw and “intemperate” purposes.

There are many differences between Great Britain and the United States on the evolution of the language and process for impeachment. There was great debate over the inclusion of “maladministration” as a basis for impeachment. There was also the debate in the first impeachment over retroactive or post-service impeachments. That is why I have repeatedly said that people on both sides are struggling to deal with this novel impeachment and that many of us continue to struggle with the issue in good faith.

In my 1999, Duke Law Journal article on impeachment, I wrote that “[t]he Senate majority, however, was correct in its view that impeachments historically extended to former officials, such as Warren Hastings.” See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke Law Journal 1-146 (1999)(emphasis added). Strangely, some have cited that line to show that I have changed my position on the subject. It doesn’t. It indeed was used retroactively in Great Britain as a historical matter, which I have always acknowledged. Yet, there are significant differences in the use of impeachment in both countries. Indeed, the colonial impeachments were strikingly different in many respects. As I noted in the Duke article, “Even if the only penalty is disqualification from future office, the open presentation of the evidence and witnesses represents the very element that was missing in colonial impeachments.”

This has remained an open question and much contested in the United States as I noted in my later North Carolina article.  Jonathan Turley, The    “Executive    Function”    Theory,    the    Hamilton    Affair    and    Other    Constitutional Mythologies, 77 North Carolina Law Review 1791-1866 (1999).  The point of that piece is that impeachment is not limited to violations of an executive function but can involve other violations like perjury.  We are left with the value of a trial for a public judgment on past conduct and the costs of a retroactive trial on the constitutional system. That has remained unresolved. The prior discussion addressed how impeachment serves a type of dialogic role in our society. Such trials can have value as with Trump. However, there are also serious countervailing costs that are equally evident in the case of Trump.

This issue has not been a focus of my past writings – or the writings of most of us who have written on impeachment in prior years. I viewed it as an open question, but saw the value in such trials.

The Trump impeachments will force us to address new precedent for its implications of the process used in both impeachments. I have spent considerable time in the last few weeks drilling down on this issue. Some have noted my Duke piece recognized the value of impeachment trials beyond removal. That is true. It is certainly fair to note that my earlier writings can be used to argue for the value of such trials. I did state that the Belknap trial and Hastings trials had the value of an airing of the misconduct of ex-officials. Here is the entirely what I said:

  “If impeachment was simply a matter of removal, the argument for jurisdiction in the Belknap case would be easily resolved against hearing the matter. The Senate majority, however, was correct in its view that impeachments historically had extended to former officials, such as Warren Hastings. Impeachment, as demonstrated by Edmund Burke, serves a public value in addressing conduct at odds with core values in a society. At a time of lost confidence in the integrity of the government, the conduct of a former official can demand a political response. This response in the form of an impeachment may be more important than a legal response in the form of a prosecution. Regardless of the outcome, the Belknap trial addressed the underlying conduct and affirmed core principles at a time of diminishing faith in government. Absent such a trial, Belknap’s rush to resign would have succeeded in barring any corrective political action to counter the damage to the system caused by his conduct. Even if the only penalty is disqualification from future office, the open presentation of the evidence and witnesses represents the very element that was missing in colonial impeachments. Such a trial has a political value that runs vertically as a response to the public and horizontally as a deterrent to the executive branch.”

I still believe that such trials can have such a dialogic and public interest value. Clearly these trials mean that impeachment was not viewed as a matter solely of removal. The officials were already gone.  It is also unassailable that such retroactive impeachments have occurred historically. Finally, there is no question that an official could bar corrective political action with a resignation. None of that has changed in my view and I have made those points in the current controversy.

My point in these writings was to address the very narrow interpretations of impeachment offered by figures like Laurence Tribe and offer a broader view of the standard. Back then, these scholars voiced a far more restrictive view of impeachment, declaring that lying under oath in the Clinton case would not be an impeachable offense. In the context of a host of impeachment allegations over the last four years, they have espoused a strikingly broader interpretation of the language of Constitution. Such views can change with time.

While only briefly addressed in my past writings, my view of this threshold issue has continued to evolve over the last 30 years of writings and later serving as lead counsel in an impeachment. I still hold the prior views on the history and value of such retroactive trials. However, I believe that the language and implications of such trials outweigh those benefits. Indeed, I have found over these decades that departures from the language of the Constitution has often produced greater dangers and costs. I have become more textualist in that sense, but I am neither an originalist nor a strict textualist. I have discussed the trend in my writings over the last three decades. It does not change my view of the meaning of high crime or misdemeanors. This is only a question of the jurisdiction of the Senate. If I were to write the Duke piece today, I would still maintain that it shows how impeachment trials serve this dialogic role but that I agree with roughly half of the Senate that trial was extraconstitutional. It was historically allowed but I believe that it is not constitutionally sound. That view against retroactive impeachments is strengthened by what we have witnessed in the two Trump impeachments.

As the Supreme Court itself has shown, new cases will often force a reexamination of what were collateral issues. Ironically, while some claimed that I changed my views from the Clinton impeachment, the truth is that my views on impeachment have changed little in 30 years. Indeed, most simply note that I favored impeachment with Clinton and opposed it with Trump – which reflects the differences in the underlying allegations and records, not my views on impeachment. In the Clinton impeachment, I stated that a president need not commit a crime to be impeached but that Congress has historically looked to the criminal code to weigh articles of impeachment. In the Clinton impeachment, Democrats accepted (as ultimately did a federal court) that Clinton committed perjury – a clear felony – for lying under oath. My view was that it was clearly impeachable conduct and that it did not matter the subject matter of the perjury.

In the Trump impeachment, I did not believe that there was a clear criminal act. Nevertheless, I said he could be impeached. In my written and oral testimony, I opposed the much discussed articles of impeachment on bribery, extortion, campaign finance and obstruction of justice. While my fellow witnesses made good-faith arguments for those articles, my testimony primarily focused on the legal and constitutional flaws in claiming those criminal acts. However, I said that the Committee could legitimately impeach on claims of obstruction of Congress and abuse of power.  Indeed, Judiciary Chairman Jerry Nadler noted at the end of the impeachment hearing that I endorsed the basis of the two articles, if proven. I also expressly rejected the theory of impeachment put forward by the White House legal team.  Ultimately, the House did impeach on the two articles that I said would be legitimate, if proven.

My disagreement with the House was ultimately not on the basis of the two articles but the failure to create a sufficient record. The House leadership said that the impeachment had to be completed by the end of December – the shortest period of a presidential impeachment. I encouraged further hearings for a few more weeks to secure the testimony of key witnesses or court orders in favor of the House. I stated that this record would guarantee failure and that the Senate would not call these key witnesses (even though I supported the House later in that demand before the Senate). Ultimately, the House pushed through the vote and then waited for weeks to submit the articles to the Senate. As expected, the witnesses were not called and the President was acquitted.

Such academic points may seem nuanced and immaterial in today’s caustic and raging debate.  The same is true on retroactive impeachments.  My past writings recognized that such trials can have a dialogic value. I still believe that, but I have evolved in my view of the constitutional language and the ultimate logic of retroactive impeachments. We must now deal with the problem directly with regard to the trial of an ex-president. We must all now balance the merits of the history, language, and logic of retroactive impeachments. While still recognizing that this is a good-faith debate, I believe that such a balancing should lead to a rejection of the practice like other historical practices from Great Britain in cases like that of Warren Hastings.

Update:

After this posting was made, an article appeared on Law & Crime on my Duke piece. I did not see any inquiry from the site, but it did link to this posting on the evolution of my views on retroactive trials. Accordingly, I thought that I should respond here.

The article quotes a posting from University of Texas Law Professor Steve Vladeck challenging my current position as conflicting my position from 30 years ago. While I have been highly critical of Vladeck’s positions in the past on his own commentary on criminal and impeachment issues, I do not fault the raising of the Duke article as expressing support for the use of such trials. As I stated earlier, thirty years have passed and my views have evolved on constitutional interpretation.

My earlier discussion noted that I have always maintained that there are good-faith arguments for such retroactive trials, including the desire to express judgment on wrongdoing and the allowance for disqualification from future office. I have continued to cite those arguments in my recent commentary.  Moreover, the Duke piece pointed out that impeachment in cases like Hastings, Blount, and Belknap show a historical view that impeachment is not just about removal. That is obvious since there was no removal at issue.  I have written about all three cases extensively in the current impeachment debate.

I still see the value in such trials, but I now have a stronger view of the constitutional language and the logic of such trials.  I believe that Trump could prevail in challenging a disqualification. My columns focused on the strategic as well as the constitutional basis for Trump to forgo the trial and rely on this threshold challenge.

Unlike the false claim that my position in the first Trump impeachment changed from my position in the Clinton impeachment, this is a legitimate issue for critics to raise. As I noted earlier, there was a shift on the ultimate question of retroactive trials after 30 years of writing and practicing in the area of impeachment. What is curious is that North Carolina Law Professor Carissa Byrne Hessick called such a change as a type of ethical violation, stating that “we should also see this as a serious breach of academic ethics and professionalism. Turley’s prominence in public discourse relies, in part, on his position as a professor—that status carries with it a claim to expertise on legal matters. Apparently his expertise led him to conclude the exact opposite of what he is claiming now on an issue of great importance.”

According to Professor Hessick, an academic whose views evolve over 30 years is somehow unethical. I have discussed my prior work but it is not always part of columns. They are limited in space and focus on the immediate legal question like the defense options for President Trump. Indeed, I often have to add more background to my columns on my blog. I did so on the recent columns on impeachment. The fact that my views have evolved in three decades is hardly surprising. As I noted earlier, my views on constitutional question have evolved generally with a greater emphasis on constitutional text. My current view of retroactive trials is consistent with that trend in my writings.

Vladeck also accused me of misrepresenting what I wrote, insisting “The Duke article wasn’t just about Hastings; it was also about Blount and Belknap. Not only did @JonathanTurley defend the validity of *both* post-resignation impeachments; he spent pages explaining why they were also a good idea.”

The objection is bizarre. I did not claim that the issue was solely about Hastings. My quoted material referred to Hastings as well as Blount and Belknap. I have discussed all three cases as part of the historical record where removal was not viewed as the sole purpose of the impeachment.  Yet, Vladeck also objected that “Not only did @JonathanTurley defend the validity of *both* post-resignation impeachments; he spent pages explaining why they were also a good idea.” Once again, I discussed the earlier piece precisely on that point. I still view the cases as showing how impeachment trials can have meaning beyond the sole question of removal.

I have no problem in saying that my views on retroactive trials have evolved or changed in 30 years. Indeed, I said that. It would be strange that my view on this insular issue remained unchanged as my overall constitutional interpretative views have changed over the decades. The retroactive trials were not the focus of this or the other academic pieces. However, I did view the trials as evidence of the broader point that impeachment trials play a dialogic role. I still do. Vladeck chided that “It would be one thing if he said “yes, I said that, but I was wrong — and here’s why.” Yet, I have explained how my views have changed from 30 years ago on the constitutional language and the dangers of retroactive trials. I have fully explained why such trials can be challenged as running counter to the constitutional language and logic. I do not believe that I was wrong in recognizing the value of such trials in allowing public judgment on wrongful acts. Thus, the only part of those lines that I would change is the reference to Senate being correct in holding the Belknap trial. It was correct that historically impeachments have gone beyond removal and allowed for retroactive trials. However, I think that the use of a retroactive trial was a mistake because I now view the balance of these benefits and the countervailing costs differently. That is why I said that I would leave much of the language but add that I do not view such trials as constitutionally sound. That view is stronger today in light of both my views of constitutional interpretation as well as misgivings over the Trump impeachments.

Clearly, that will not satisfy some but there is nothing untoward or even uncommon in such an evolution of academic views.

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