December 28, 2019

American journalist H.L. Mencken once observed, "Say what you will about the Ten Commandments, you must always come back to the pleasant fact that there are only ten of them." Despite an unending respect for Mencken, this is an occasion in which I found him mistaken, after I violated the Eleventh Commandment, "Thou shalt not testify for Republicans."

Worse yet, I am a recidivist sinner, after testifying as a constitutional expert in both the Clinton and Trump impeachment hearings. Like all mortal sins, the violation of the Eleventh Commandment comes with not just eternal but immediate damnation. What is most striking about this commandment is that it does not matter if your testimony is made in good faith. For example, under the Ninth Commandment, you are only guilty if you give false evidence against your neighbor. Under the Eleventh Commandment, it does not matter if your testimony is true or false. A law-fearing academic must not give any testimony for Republicans.

In my recent testimony before the House Judiciary Committee regarding President Trump's impeachment, I opposed the position of my fellow witnesses that the definition of actual crimes is immaterial to their use as the basis for impeachment - and I specifically opposed impeachment articles based on bribery, extortion, campaign finance violations or obstruction of justice. The committee ultimately rejected those articles and adopted the only two articles I felt could be legitimately advanced: abuse of power, obstruction of Congress. Chairman Jerrold Nadler even ended the hearing by quoting my position on abuse of power. Our only disagreement was that I opposed impeachment on this record as incomplete and insufficient for submission to the Senate.

None of that matters under the Eleventh Commandment, however. It is the act of testifying for Republicans that is a sin against the legal academy. Indeed, what followed was a series of false stories attacking not my testimony but me, personally. The falsity of these stories is a warning to any academic who considers straying from the Democratic path.



Turley flipped his testimony from the Clinton impeachment. One of the most bizarre false stories was that I testified differently on my views of impeachment during the Clinton and Trump impeachments. Given the 21-year gap, it might not be strange for views to change. However, my views in the two cases were the same.

In both hearings, I said a president could be impeached for noncriminal conduct, including abuse of public office. Yet stories on CNN and other outlets objected that, in the Clinton case, I warned Congress, "If you decide that certain acts do not rise to impeachable offenses, you will expand the space for executive conduct." Somehow this was portrayed as a "flip-flop" since I was arguing against impeachment in the Trump hearings on this record. It doesn't matter that the Judiciary Committee did precisely what I suggested in dropping the four criminal theories for the articles or going forward with the two I said would be legitimate. I was not arguing against impeaching on the two articles adopted - only that a completed record was absent.

More importantly, the statement in the Clinton case referred to perjury. Democrats argued back then that a president could commit perjury on some subjects, such as sexual relations, and not face impeachment; they argued that an impeachment crime must be tied to the office, not to personal interests. That was ridiculous and would allow a president to kill a lover but not face impeachment. Indeed, the Democratic position would allow a presidential Harvey Weinstein to abuse countless interns and then pressure them to lie to an independent counsel.

Turley thought Justice Sotomayor wasn't smart enough. Perhaps the most vile false story can be traced to a tweet sent out by a University of Baltimore law professor asking, "Does anybody else remember @JonathanTurley appearing on MSNBC to explain that Sonia Sotomayor didn't have the intellect to serve on the Supreme Court?" I certainly didn't remember that - because I never said anything like that. No matter: Soon, from MSNBC to liberal websites, the story was all the rage, with titles such as "Jonathan Turley thought Sonia Sotomayor wasn't smart enough to be on the Supreme Court."

When then-Judge Sotomayor was nominated, I was asked as a legal commentator to review her opinions and give my view of what that body of work suggested about her potential on the Supreme Court. The issue at the time was whether President Obama was appointing an intellectual counterweight to conservative Justice Antonin Scalia. I noted that her opinions were narrow and offered few insights into her potential as an intellectual force on the court. My comments were directed to her opinions, not her intellect. And I was not alone in this conclusion: Adam Liptak in The New York Times noted that her opinions were "narrow" and "reveal no larger vision, seldom appeal to history and consistently avoid quotable language."

In the interview cited by the Baltimore professor, I gave my view of 30 of Sotomayor's opinions, which did not contain anything particularly deep or profound in judging her possible impact on the court. However, I immediately stated that this is not unique and that other justices have had similarly short, unremarkable appellate opinions yet proved to be profound on the Supreme Court. I expressly compared Sotomayor to Justice John Paul Stevens, whom I have long praised; I also said that Sotomayor could prove to be a truly great justice but that her opinions did not offer any glimpse into how she might emerge in such a role.

In my analysis of Justice Sotomayor's nomination, I returned to these points and specifically objected to those who said her narrow decisions were evidence of a lack of intellectual depth. I wrote, "This is demonstrably absurd. These opinions are little different from those of [Justices] Alito, Souter, or the limited writings of [Justice] Thomas. Clearly, Sotomayor is quite intelligent. This record is little different from records of Republican nominees who enthralled these same critics." And I repeatedly stressed that she could prove to be a great nominee in finding voice and depth in her opinions on the court.

Some articles objected that, in an "unprompted" comment, I raised Sotomayor's gender and race. I did so to praise the selection of the first Latina to the court, a nomination that I said was "rightfully" a point of pride. Moreover, the vast majority of news stories also referenced that historic aspect of her nomination. However, that was separate from the analysis of her opinions and the question of her intellectual legacy. What also was omitted is that, before Sotomayor's nomination, I wrote a column on intellectual leaders on the courts and pushed for the nomination of Diane Wood of the 7th Circuit, a liberal powerhouse.

None of that matters, however, because heresy demands condemnation - whether or not it is based in reality. After all, this is all meant to get people not to seriously consider the flaws in the impeachment, including the proposed articles that ultimately were dropped. So, for any academic tempted to testify for Republicans in an impeachment proceeding, I can only caution that Romans 12:19 may say that "vengeance is mine ... sayeth the Lord" - but judgment will be more immediate for anyone who strays from the chosen professorial path.

https://thehill.com/opinion/judiciary/47...r-academics?amp