George Washington University Law School professor Jonathan Turley testified before the House Judiciary Committee last week that if the House impeached President Donald Trump for “obstruction of Congress,” it would be abusing its power.
Yet Democrats are poised to do exactly that with an article of impeachment on obstruction of Congress, according to a report Monday evening in the Washington Post.
Turley argued that under the Constitution, the judicial branch exists to resolve differences between the other two branches. When the legislative branch demands information or witnesses from the executive branch, the latter can assert its own powers, and the courts can decide.
The House, he noted, had rushed to impeachment before waiting for the judicial process to play out, and before even attempting to subpoena all of the relevant witnesses. It was asserting the principle that the executive simply had to comply with all of the legislatures’s demands, and denying a role for the judiciary at all. Turley concluded:House Judiciary Committee
I can’t emphasize this enough, and I’ll say it just one more time. If you impeach a president, if you make a “high crime and misdemeanor” out of going to the courts, it is an abuse of power. It’s your abuse of power. You’re doing precisely what you’re criticizing the president for doing. We have a third branch that deals with conflicts of the other two branches. And what comes out of there and what you do with it is the very definition of legitimacy.
Other legal scholars agree. Left-wing law professor Cass Sunstein, who served in the Obama administration, wrote in 2017 in Impeachment: A Citizen’s Guide that there is “no legitimate basis for impeachment” if the president has a good-faith reason for denying the House what it demands.
He added: “Presidents should cooperate with legitimate investigations, but it is not a high crime or misdemeanor to refuse to cooperate with a congressional investigation into an offense that is not independently impeachable. Congress cannot gin up an impeachable offense by investigating an offense that is not impeachable, and then encountering presidential resistance.”
The House Judiciary Committee’s staff report, written entirely by Democrats, cites Sunstein’s book — but ignores that point.
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.