As expected, both Twitter feeds and news analysis on Friday were littered with smug claims from those who wanted to nitpick every action taken by the House impeachment managers, both hearings and in the Senate trial, for what they had done “wrong.” And perhaps none of them were smugger than instant expert Jonathan Turley, the man elevated to “perhaps the greatest constitutional scholar” by House Republicans for the simple reason that he was the only person who they could find who would agree with them.
“Had they waited for a couple months as I advised,” said Turley following the vote on witnesses. “They could have gotten Bolton's testimony and other witnesses as well as key court orders. It was a rush to a failed impeachment.” But the guy who was that guy, before Alan Dershowitz was that guy, is not simply wrong; he’s making an argument that both ignores what really happened and papers over a gaping hole in American justice.
My original reply to Turley included calling him a “great thundering yutz.” There’s no need for that here. So I did it anyway.
But the important thing isn’t this weak-tea attempt to extend Turley’s fifteen minutes of fame long enough to land a few prime analysis spots on Fox. It’s that by perpetuating this view, he gives Monday morning quarterbacks a satisfying explanation to nod over: If only Nancy Pelosi, Adam Schiff, and Jerry Nadler had done it this way, if only they had dotted this ‘i’ before crossing that ‘t’ and inserted tab A into slot B … If only they had done it the right way, all would have been fine.
That’s not just wrong. It’s ridiculously wrong. It’s dangerously wrong. It’s such a bassackwards* view of events and motives that it sets up infinite future failure. And it leaves the ship of state with a yawning wound, sinking not at all slowly during a deckchair positioning debate.
What really happened was this:
Lamar! Alexander: “There is no need for more evidence to prove something that has already been proven.”
Marco Rubio: “New witnesses that would testify to the truth of the allegations are not needed.”
From the moment that Senators Lisa Murkowski and Lamar! Alexander teamed with Lindsey Graham and Ted Cruz to direct a question to the Trump defense team, it was clear not only that the cause was lost, but why it was lost. It was not because there was a lack of Bolton's testimony, other witnesses, or documents. They accepted the case as proven. Proven.
Their question, handed over to Trump’s team for blessing, had nothing to do with evidence, witnesses, or even process claims. It was simply this—even if Trump did everything the House managers said he did, would it be impeachable? The Trump team immediately declared that it was not an issue, as Murkowski and Alexander knew they would when sending the question their way.
Had that same question been directed to the House managers, it would have been signal that the rule of law was still in play. But because it went to the Trump team, it was a flashing neon sign signaling “GAME OVER.” Nothing said after that point mattered in the least.
The entire reasoning behind these Republican statements doesn't just assume the case is true as a hypothetical, it labels it "proven" and in no need of further proof. Adam Schiff understood that the moment Murkowski and Alexander staked their position in deep Dershowitz territory. It was immediately obvious when he stood and began his next response by ignoring the question given him and saying “Let me be blunt,” before speaking to what he knew: the field was lost.
This is not something that could have been solved by further months in court trying to knock down "immunity," to be followed by months of fighting to prove "validity," to be followed by months of claims concerning "privilege," to be followed by months of some new invention. It’s not an issue that could have been resolved at all. Trump was quite content to ascend and descend the ladder of courts repeatedly, knowing that he has bottomless legal resources, a fixed window beyond which it will not matter, and that he has appointed a quarter of all appellate judges— a number that will only increase.
Had the House pursued witnesses until Barron Trump's second term, they would never have secured clear testimony of a single current White House official, on the points critical to the trial, so long as the White House resisted that effort. Never. This is not, and probably never was, a scalable mountain.
What made past impeachments possible was that Nixon and Clinton cooperated. Not just failed to block subpoenas, but actively demonstrated faith in the system by instructing their officials to testify. Trump had no intention in cooperating at all, ever. Nor any reason to do so.
The experience of the House is easily sufficient to show that, given the resources of the White House counsel and DOJ, an uncooperative president need never be brought to heel. Never. Not, to steal from Lincoln, in the "trial of a thousand years." Not under the system as it exists. There is no existent mechanism, outside impeachment, to being an uncooperative executive to heel. And an executive determined to be uncooperative on the subject of impeachment can be uncooperative forever, unless Congress is prepared to hold that lack of cooperation itself as a cause for impeachment.
The Senate made it clear that it would not do this. House managers made it clear themselves … the second article was key to their case. Key to the oversight role of Congress. Key to the legitimate power of both the Senate and the House. Schiff and others did all they could to underline that point, bringing the attention again and again to the point that the Senate should not accept broad claims of either privilege or immunity on the part of the Executive, because it has never accepted even the existence of such power in the past. Historically, the Senate has never recognized even narrow claims of privilege on the part of the White House. This time, the House could not enlist a Senate determined to protect Trump at all costs, even if that cost was to their own authority.
Without that, it was not possible to proceed. Schiff recognized that clearly. That’s why the efforts on Friday were not framed as an effort to simply bringing in John Bolton or any other witness, but to structure the depositions in a way that allowed decisions about privilege to stay within the Senate. Historically, neither the House nor the Senate has ever endorsed the idea that executive privilege exists. They have claimed, and still do, the right to access any document, any witness, on any subject. But they know privilege is out there; that it has been recognized by the courts. So they often carefully avoid fights over privilege out of fear that a court ruling will redefine this amorphous blob (which, no matter how many times Pat Philbin said it, is not in the Constitution) in a way that makes it larger.
Schiff dangled his bait in the Senate’s sweet spot. Offering them a chance to test the bounds of privilege in a way that did not risk leaving behind a nasty court precedent. They did not bite.
This situation did not come out of some great genius on Trump’s side. Trump is not a genius. But his natural inclination is simply to refuse cooperation. And with the system as it is, that is all it takes. He can lose all day, every day, in every court, and still never face a day of testimony so long as a witness adheres to his instructions to stay quiet. Impeachment isn’t the option of last resort, it’s the only option available if the executive digs in its heels. If Turley wants to address something, he needs to look squarely at this open wound and determine what steps can be put in place to make it possible to rein in not just this executive, but future executives. How might we prevent “will not cooperate” from becoming both standard practice and an automatic out?
And still ... That was never the issue in any case. No matter what Turley says. No matter what a thousand other armchair generals deliver with a waggle of their oh-so-wise fingers.
Republicans told you their reasoning... they don't care. They considered it proven. It wasn’t an issue of privilege. It wasn’t an issue of witnesses. It wasn’t an issue of anything that might have introduced new facts. They surrendered on the facts.
The Senate decision was made on the profound and eternal principle of They simply do not give a damn. That cannot be remedied through evidence, or reason, or anything that is within the powers of anyone on the House team to deliver.
*I can’t tell you how happy I am that this word got the sanction of use on the Senate floor during the trial. It’s always been one of my favorites.