George Washington University law professor Jonathan Turley followed last week's impeachment trial against former President Trump very closely. Turley was the only witness called by Republicans to participate in the first trial against Trump in 2019, when the president faced charges after discussing the Bidens and corruption on a phone call with Ukrainian President Zelensky. At the time, Turley explained that "impeachment has to be based on proof, not presumptions."
Turley found several more glaring holes in the Democrats' arguments last week as they tried to convict him on inciting an insurrection. One argument in particular Turley found to be "breathtaking" and "chilling" - when lead impeachment manager Jamie Raskin (MD) suggested that Trump was guilty because he refused to show up and testify.
“If you decline this invitation, we reserve any and all rights, including the right to establish at trial that your refusal to testify supports a strong adverse inference regarding your actions (and inaction) on January 6, 2021,” Rep. Raskin wrote to Trump, essentially arguing that the former president needed to testify or his silence equals guilt.
On his blog, Turley explained that Raskin was misleading senators because Trump's decision is not unprecedented:
"Presidents have historically not testified at impeachment trials. One reason is that, until now, only sitting presidents have been impeached and presidents balked at the prospect of being examined as head of the Executive Branch by the Legislative Branch. Moreover, it was likely viewed as undignified and frankly too risky. Indeed, most defense attorneys routinely discourage their clients from testifying in actual criminal cases because the risks outweigh any benefits. Finally, Trump is arguing that this trial is unconstitutional and thus he would be even less likely to depart from tradition and appear as a witness."
Turley said that Raskin's statement "conflicts with one of the most precious and revered principles in American law that a refusal to testify should not be used against an accused party."
Earlier in the week, Turley was surprised to hear his name referenced by the Democrats as they were giving their presentation. Rep. Joe Neguse (CO) cited one of Turley's writings from 1999, “The Executive Function Theory, The Hamilton Affair, and Other Constitutional Mythologies," to argue that they have a right to impeach former officials.
Turley quickly and politely responded that while he appreciated the shoutout, his views on the matter have "evolved."
"There is nothing strange about such evolution in views of constitutional interpretation," he wrote. "Indeed, as scholars, we are ideally always evolving in our knowledge and our views. However, I still believe retroactive active trials have dialogic value and that this remains a close question. However, my default today is more textualist on the question."
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