George Washington University Law School professor Jonathan Turley testified at the House Judiciary Committee’s first impeachment inquiry hearing on Wednesday that under Democrats’ “abuse of power” standard, it was possible that every U.S. president — including Barack Obama — could be impeached.
Turley’s analysis matches that of liberal law professor Cass Sunstein, a former Obama administration official, who wrote in 2017 that abuse of power was, by itself, an insufficient grounds for impeaching a president because it was simply too broad: “Almost every American president has, on more than one occasion, passed the bounds of his power, in the sense that his administration has done something that it is not lawfully entitled to do.”
Rep. Ken Buck (R-CO), picking up on that theme, asked Turley whether the Democrats’ standard was valid. Turley implicitly criticized one of the Democrats’ witnesses, Harvard Law School professor Noah Feldman, who had just testified, “Impeachment is complete when the president abuses his office, and he abuses his office by attempting to abuse his office.”
Turley said: “I’m not even sure how to recognize that, let alone define it.”
Buck then continued:
Buck: So let me go with a few examples, and see if you agree with me. Lyndon Johnson. Directed the Central Intelligence Agency to place a spy in Barry Goldwater’s campaign. That spy got advance copies of speeches and other strategy. Delivered that to the Johnson campaign. Would that be that impeachable conduct, according to the other panelists?
Turley: Well, it sweeps pretty broadly, so I assume so.
Buck: How about when President Johnson put a wiretap on Goldwater’s campaign plane? Would that be for political benefit?
Turley: Well, I can’t exclude anything under that definition.
Buck: Okay. Well, I’m going to go with a few other presidents, we’ll see where we go. Congressman [Ted] Deutch [D-FL] informed us that FDR put country first. Now, Franklin Delano Roosevelt, when he was president, directed the IRS to conduct audits of his political enemies — namely Huey Long, William Randolph Hearst, Hamilton Fish, Father Coughlin. Would that be an abuse of power for political benefit according to the other panelists? Would that be impeachable conduct?
Turley: I think it all would be subsumed into it.
Buck: How about when President [John F.] Kennedy directed his brother, [Attorney General] Robert Kennedy to deport one of his mistresses as an East German spy? Would that qualify as impeachable conduct?
Turley: Once again, I can’t exclude it.
Buck: And how about when he directed the FBI to use wiretaps on congressional staffers who opposed him politically? Would that be impeachable conduct?
Turley: It would seem to be falling within it.
Buck: And let’s go to Barack Obama. When Barack Obama directed, or made a finding that the Senate was in recess, and appointed people to the National Labor Relations Board, and lost 9-0 — Ruth Bader Ginsburg voted against the president on this issue — would that be an abuse of power?
Turley: I’m afraid you’d have to direct that to [the] others, but I don’t see exclusions under their definition.
Buck: Okay. And how about when the president [Obama] directed his national security adviser and the secretary of state to lie to the American people about whether the ambassador to Libya was murdered as a result of a video, or was murdered as a result of a terrorist act? Would that be an abuse of power for political benefit, 17 days before the next election?
Turley: Well, not according to my definition. The others will have to respond to their own.
Buck: Well, you’ve heard their definition.
Turley: I can’t —
Buck: You can apply those facts to their definition.
Turley: I have a hard time excluding anything.
Buck: How about when Abraham Lincoln arrested legislators in Maryland so that they wouldn’t convene to secede from the Union? And Virginia already had seceded, so it would have placed Washington, DC, the nation’s capital, in the middle of the rebellion? Would that have been an abuse of power for political benefit?
Turley: Well, it could be under that definition.
Buck: And you mentioned George Washington a little while ago, as perhaps having met the standard of impeachment for your other panelists. In fact, let me ask you something, Professor Turley. Can you name a single president in the history of the United States — save President [William Henry] Harrison, who died 32 days after his inauguration — that would not have met the standard of impeachment for our friends here?
Turley: I would hope to God James Madison would escape. [Laughter] Otherwise, a lifetime of academic work would be shredded. But once again I can’t exclude many of these acts.
Buck: Isn’t what you and I and many others are afraid of, is that the standard that your friends to the right of you — and not politically, but to the right of you sitting on there — that your friends have decided that the bar is so low that when we have a Democrat president in office and a Republican House and a Republican Senate, we’re going to be going through this whole scenario again in a way that really puts the country at risk?
Turley: Well, when your [Democrats’] graphic says, in your “ABCs,” that your “B” is “betrayal of national interests,” I would simply ask, do you really want that to be your standard?
Turley later added: “It’s not that abuse of power can never be an impeachable offense. You just have to prove it. And you haven’t.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.