A Negotiated Resolution for the Second Article of Impeachment

Professor Jonathan Turley has been extremely critical of the second article of impeachment against President Trump. Turley claims that the charge of obstruction of Congress is improper because the House failed to pursue judicial relief for the president’s failure to comply with its subpoenas and requests for information. He asserts that by not giving the White House an opportunity to challenge subpoenas the House “effectively made the seeking of judicial review a ‘high crime and misdemeanor.'”

I think Turley is wrong for a number of reasons, but whether he is right or wrong is not so important at this juncture. My concern is that the Senate will acquit the president on the obstruction of Congress charge without first hearing from witnesses or obtaining documents that were withheld from the House. This action would be (reasonably) construed as standing for the proposition that the president can withhold any information he pleases from Congress, regardless of the reason or whether any privilege is invoked.

Here Turley has a suggestion which is worth considering. (I made a similar suggestion independently so I will share the blame.) Senators could offer a motion to dismiss the second article on the condition that the White House makes available the witnesses and documents the Senate needs to properly evaluate the first article, abuse of power. In essence, this would allow the president to purge his contempt by agreeing to provide the disputed information, something that Congress routinely allows contumacious witnesses to do.

On one point I am not in agreement with Turley, however. He suggests that the White House should still have the opportunity to litigate privilege claims. This is impractical and improper. Assuming the White House is allowed to raise privilege claims as to specific questions or documents, going to a federal district judge for a decision is (1) inconsistent with the constitutional design, which gives the Senate the sole power to try impeachments; (2) totally impractical (is the Senate going to wait while each objection is litigated to the Supreme Court?); and (3) downright silly in a presidential impeachment trial. You have the (expletive deleted) chief justice sitting right there! Let him rule.

This solution has something for everyone. The president and his defenders get half of the charges dismissed. The House managers get the evidence they have demanded. The Senate majority leader gets an assurance the trial will not drag on indefinitely. There is at least a measure of transparency and accountability for the president’s misconduct. And the House and Senate preserve at least a measure of their authority and dignity.

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