A Reasoned Case Against Impeachment

more from Turley's statement pg 39

Most recently, the members have focused on an obstruction allegation centering on the instructions of the White House to current and former officials not to testify due to the expectedassertions of executive privilege and immunity. Notably, the House has elected not to subpoena core witnesses with first-hand evidence on any quid pro quo in the Ukraine controversy. Democratic leaders have explained that they want a vote by the end of December,and they are not willing to wait for a decision from the court system as to the merits of these disputes. In my view, that position is entirely untenable and abusive in an impeachment. Essentially, these members are suggesting a president can be impeached for seeking a judicial review of a conflict over the testimony of high-ranking advisers to the President over direct communications with the President.The position is tragically ironic. The Democrats have at times legitimately criticized the President for treating Article II as a font of unilateral authority. Yet, they are now doing the very same thing in claiming Congress can demand any testimony or documents and then impeach any president who dares to go to the courts. Magnifying the flaws in this logic is the fact that the House has set out one of the shortest periods in history for this investigation—a virtual rocket docket for impeachment. House leaders are suggesting that they will move from notice of an alleged impeachable act at the beginning of September and adopt articles of impeachment based on controversy roughly 14 weeks later. On this logic, the House could give a president a week to produce his entire staff for testimony and then impeach him when he seeks review bya federal judge.

More from Turley's statement pg 43-44-45

43C.Extortion.As noted earlier, extortion and bribery cases share a common law lineage.Under laws like the Hobbs Act, prosecutors can allege different forms of extortion.The classic form of extortion is coercive extortion to secure property “by violence, force, or fear.”85Even if one were to claim the loss of military aid couldinstill fear in a country, that is obviously not a case of coercive extortion as that crime has previously been defined.Instead, it would presumably be alleged as extortion “under color of official right.”86Clearly, both forms of extortionhave a coercive element,but the suggestion is that Trump was “trying to extort” the Ukrainians by withholding aid until they agreed to open investigations.The problem is that this allegation is no closer to the actual crime of extortion than it is to its close cousin bribery. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right.”87As shown in cases like United States v. Silver,88extortion is subject to the same limiting definition as bribery and resulted in a similaroverturning of convictions.Anotherobvious threshold problem is defining an investigation into alleged corruption as “property.” Blackstone described a broad definitionof extortionin early English law as “an abuse of public, justice which consists in an officer's unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due him, or more than is due, or before it is due.”89The use of anything “of value” today would be instantly rejected.Extortion cases involve tangible property, not possible political advantage.90In this case, Trump asked for cooperation with the Justice Department in its investigation into the origins of the FBI investigation on the 2016 election. As noted before, that would make a poor basis for any criminal or impeachment theory.The Biden investigation mayhave tangible political benefits,but it isnot a form of property. Indeed, Trump did not know when such an investigation would be completed or what it might find. Thus, the request was for an investigation thatmight not even benefit Trump. The theory advanced for impeachment bears a close similarity to one of the extortion theories in United States v. Blagojevichwhere the Seventh Circuit overturned an extortion conviction based on the Governor of Illinois,Rod Blagojevich,pressuring then Sen. Barack Obama to make him a cabinet member or help arrange for a high-paying job in exchange for Blagojevichappointinga friend of Obama’s to avacant Senate seat. The prosecutors argued such a favor was property for the purposes of extortion. The court dismissed the notion, stating “The President-elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (orthe citizenry at large).”’91In the recent hearings, witnesses spoke of the desire for “deliverables” sought with the aid. Whatever those “deliverables” may have been, they were not property as defined for the purposes of extortion any more than the “logrolling” rejected in Blagojevich.There is one other aspect of the Blagojevichopinion worth noting.As I discussed earlier, the fact that the military aid was required to be obligated by the end of September weakens the allegation of bribery. Witnesses called before the House Intelligence Committee testified that delays were common, but that aid had to be released by September 30th. It was released on September 11th. The ability to deny the aid, or to even withhold it past September 30this questionable and could have been challenged in court. The status of the funds also undermines the expansive claims on what constitutes an “official right” or “property”:“The indictment chargedBlagojevichwith the ‘color of official right’version of extortion, but none of the evidence suggests that Blagojevich claimed to have an ‘official right’to a job in the Cabinet.Hedidhavean‘officialright’toappointanewSenator,butunlessapositionintheCabinetis‘property’fromthePresident'sperspective,thenseekingitdoesnotamounttoextortion.Yetapoliticalofficebelongstothepeople,nottotheincumbent(ortosomeonehankeringaftertheposition).Clevelandv.UnitedStates,531U.S.12(2000),holdsthatstateandmunicipallicenses,andsimilardocuments,arenot‘property’inthehandsofapublicagency.That's equally true of public positions. The President-elect did not have a property interest in any Cabinet job, so an attempt to get himto appoint a particular person to the Cabinet is not an attempt to secure ‘property’from the President (or the citizenry at large).”92A request for an investigation in anothercountry or the release of money already authorized for Ukraine are even more far afield from the property concepts addressed by the Seventh Circuit.

The obvious flaws in the extortion theory were alsomade plainby the Supreme Courtin Sekhar v. United States,93where the defendant sent emailsthreatening to reveal embarrassing personal informationto theNew York State Comptroller’s general counsel in order to secure the investment ofpension funds with the defendant. In an argument analogous to the current claims, the prosecutors suggested political or administrative support was a form of intangible property. As in McDonnell, the Court was unanimous in rejecting the “absurd”definition of property. The Court was highly dismissive of such convenient linguistic arguments and noted that “shiftingand imprecise characterization of the alleged property at issue betrays the weaknessof its case.”94It concluded that “[a]doptingtheGovernment’stheoryherewouldnotonlymakenonsenseofwords;itwouldcollapsethelongstandingdistinctionbetweenextortionandcoercionandignoreCongress’schoicetopenalizeonebutnottheother.That we cannot do.”95Nor should Congress. Muchlike suchexpansive interpretations would be “absurd” for citizens in criminal cases, it would be equally absurd in impeachment cases.

more from Turley's statement pg 48-49

Presidents often put pressure on other countries whichmany of us view as inimical to our values or national security. Presidents George W. Bush and Barack Obama reportedly put pressure on other countries not to investigate the U.S. torture programor seek the arrest of those responsible.103President Obama and his staff also reportedlypressured the Justice Department not to initiate criminal prosecution stemming49from the torture program.104Moreover, presidents often discuss political issues with their counterparts and make comments that are troubling or inappropriate. However, contemptible is not synonymous with impeachable. Impeachment is not a vehicle to monitor presidential communications for such transgressions. That is why making the case of a quid pro quo is so important –a case made on proof, not presumptions.While critics have insisted that there is no alternative explanation, it is willful blindness to ignore the obvious defense. Trump can argue that he believed the Obama Administration failed to investigate a corrupt contract between Burisma and Hunter Biden. He publicly called for the investigation into the Ukraine matters.Requesting an investigation is not illegal any more than a leader asking for actions from their counterparts during election years.Trump will also be able to point to three direct conversations on the record. His call with President Zelensky does not state a quid pro quo. In his August conversation with Sen. Ron Johnson (R., WI.), President Trump reportedly denied any quid pro quo.In his September conversation with Ambassador Sondland, he also denied any quid pro quo. The House Intelligence Committee did an excellent job in undermining the strength of the final two callsby showing that President Trump was already aware of the whistleblower controversy emerging on Capitol Hill. However, that does not alter the fact that those direct accounts stand uncontradicted by countervailing statements from the President. In addition, President Zelensky himself has said that he did not discuss any quid pro quo with President Trump. Indeed, Ambassador Taylor testified that it was not until the publication of the Politicoarticle on September 31stthat the Ukrainians voiced concerns over possible preconditions. That was just ten days before the release of the aid.That means that the record lacks not only direct conversations with President Trump (other than the three previously mentioned) but even direct communications with the Ukrainians on a possible quid pro quo did not occur until shortly before the aid release. Yet, just yesterday, new reports filtered out on possible knowledge before that date—highlighting the premature move to drafting articlesof impeachment without a full and complete record.

more from Turley's statement pg 50-51-52

V.CONCLUSION
Allowme to becandid in my closing remarks.I get it. You are mad. ThePresident is mad. My Democratic friends are mad.My Republican friends are mad. My wife is mad. My kids are mad. Even my dog is mad . . . and Luna is a golden doodle and they are never mad. We are all mad and where has it taken us?Will a slipshod impeachment make us less mad or will it only give an invitation for the madness to follow in every future administration?That is why this is wrong. It is not wrong because President Trump is right. His call was anything but “perfect” and his reference to the Bidens was highly inappropriate.It is not wrong because the House has no legitimate reason to investigate the Ukrainian controversy. The use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachableoffense.It is not wrong because we are in an election year. There is no good time for an impeachment,but this process concerns the constitutional right to hold office in this term, not the next.No, it is wrong because this is not how an American president should be impeached.For two years, members of this Committee have declared that criminal and impeachable acts were established for everything from treason to conspiracy to obstruction. However, no action was taken to impeach. Suddenly, just a few weeks ago, the House announced it would begin an impeachment inquiry and push for a final vote in just a matter of weeks. To do so, the House Intelligence Committee declared that it would not subpoena a host of witnesses who have direct knowledge of any quid pro quo. Instead, it will proceed on a record composed of a relatively small number of witnesses with largely second-hand knowledge of the position. The only three direct conversations with President Trump do not contain a statement of a quid pro quo and two expressly deny such a pre-condition. The House has offered compelling arguments why those two calls can be discounted by the fact that President Trump had knowledge of the underlying whistleblower complaint. However, this does not change thefact that it is moving forward based on conjecture, assuming what the evidence would show if there existed the time or inclination to establish it.The military aid was released after a delay that the witnesses described as “not uncommon”for this or prior Administrations. This is not a case of the unknowable. It is a case of the peripheral. The House testimony is replete with references to witnesses like John Bolton, Rudy Giuliani, and Mike Mulvaney who clearly hold material information.To impeach a president on such a record would be to expose every future president to the same type of inchoate impeachment.Principle often takes us to a place where we would prefer not to be.That was the place the “Republican Recusants” found themselves in 1868 when sitting in judgment of a president they loathed and despised. However, they took an oath not to Andrew Johnson,but to the Constitution. One of the greatest among them, Lyman Trumbull (R-Ill.) explained his fateful decision to vote against Johnson’s impeachmentcharges even at the cost of his own career:“Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes ... no future President will be safe who happens to differ with the majority of the House and two-thirds of the Senate ...Itremble for the future of my country. I cannot be an instrument to produce such a result; and at the hazard of the ties even of friendship and affection, till calmer times shall do justice to my motives, no alternative is left me...”106Trumbull acted in the same type of age of rage that we have today. He knew thatraisinga question about the underlying crime or the supporting evidencewould instantly be condemned as approving of the underlying conduct of a president. In an age of rage, there seems to beno room for nuance or reservation. Yet, that is what the Constitution expects of us. Expects of you.For generations, the seven Republicans who defected to save President Johnson from removal have been heralded as profiles of courage.In recalling the moment he was called to vote, Senator Edmund Ross of Kansassaidhe“almost literally looked down into my open grave.” He jumped because the price was too great not to.Such moments are easy tocelebrate froma distance of time and circumstance. However, that is precisely the moment in whichyou now find yourself. “When the excitement of the hour [has] subsided” and “calmer times” prevail, I do not believe that this impeachment will be viewed as bringing credit upon this body. It is possible that acase for impeachment could be made, but it cannot be made on this record. To return to Wordsworth, the Constitution is not a call to arms for the “Happy Warriors.” The Constitutioncalls for circumspection, not celebration, at the prospect of the removal of an American president. It is easy to allow one’s “judgment [to be] affected by your moral approval of the lines” in an impeachmentnarrative. But your oath demandsmore, even personal and political sacrifice, in deciding whether to impeach a president for only the third time in the history of this Republic. In this age of rage, many are appealing for us to simply put the law aside and “just do it” like this is some impulse-buy Nike sneaker. You can certainly do that. You can declare the definitions of crimes alleged are immaterial and this is an exercise of politics, not law. However, the legal definitions and standards that I have addressed in my testimony are the very thing dividingrage from reason. Listening to these calls to dispense with such legal niceties, brings to mind a famous scene with Sir Thomas More in “A Man For All Seasons.” In a critical exchange, More is accused by his son-in-law William Roper of putting the law before moralityand that More would “give the Devil the benefit of law!”When More asks if Roper would instead “cut a great road through the law toget after the Devil?,” Roper proudly declares “Yes, I’dcut down every law in England to do that!” More responds by saying “And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’slaws, not God’s! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’dgive the Devil benefit of law, for my own safety’ssake!”Both sides in this controversy have demonized the other to justify any measure in defense much like Roper. Perhaps that is the saddest part of all of this. We have forgotten the common article of faith that binds each of us to each other in our Constitution. However, before we cut down the trees so carefully planted by the Framers, I hope you consider what you will do when the wind blows again . . . perhaps for a Democratic president. Where will you stand then “the laws all being flat?”107Thank you again for the honor of testifying before you today. I am happy to answer any questions that you may have.108

Rep. Stefanik @4:48:20.....lasts about 4-5 minutes
WATCH: Impeachment Inquiry Hearing with E.U. Ambassador Gordon Sondland

essentialsaltes said:

Congress has subpoenaed such testimony. Trump has ordered people not to comply.

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essentialsaltes said:

Trump has not sought a judicial review. He has ordered people to not comply.

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essentialsaltes said:

Congress has issued valid subpoenas and Trump has not dared to go to the courts. He has simply ordered that this evidence be withheld from Congress, which has sole authority over these proceedings.

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It is up to congress to seek a judicial review since they are contesting the refusal to comply. Curious as to why they won't? Cuz it don't fit their end of December timeline. So the dems have a timeline when dealing with an impeachment. Their excuse is it would take to long to get the information they claim they need to make their case. I can only guess what they think they have is is close enough.....man I am glad court procedures aren't handled the same way......sheesh