Mutual Destruction: How Trump’s Trial Became A Tale Of Constitutional Noir
Below is my column in the Hill on second Trump trial and how core values quickly became the extraneous to the purpose of this constitutional process. The final chaos triggered by Rep. Jaime Raskin (D., Md) only highlighted the procedural and legal irregularities in a trial that seem increasingly detached from values like due process.
Here is the column:
In the 1946 movie “Gilda,” Rita Hayworth delivered perhaps the ultimate film noir line. Looking at her former lover, she declared, “I hate you so much that I would destroy myself to take you down with me.” Hayworth made self-destruction sound positively alluring. That line came to mind as I watched House impeachment managers and Democratic senators systematically discard basic values that once defined fair trials — and American values — under the Constitution.
When Donald Trump’s defense counsel objected that he was not afforded due process in the House, the managers shrugged and said due process was not required. When the defense objected that Trump’s Jan. 6 speech was protected under the First Amendment, the House scoffed that free speech is not only inapplicable but “frivolous” in an impeachment. Nothing, it seems, is so sacred that it cannot be discarded in pursuit of Trump. Over and over, it was made clear that his trial is about the verdict, not about our constitutional values.
Even with acquittal all but ensured, there was no room for constitutional niceties like free speech or due process. There was only one issue — the same one that has driven our media and politics for four years: Trump. Through that time, some of us have objected that extreme legal interpretations and biased coverage destroy our legal and journalistic values. It was not done out of love for Trump: I voted against him in two elections and have regularly denounced his actions and rhetoric, including his Jan. 6 speech. However, I cherish our values more than I dislike him.
That is why the second Trump impeachment trial played out with a film noir flourish, featuring the same “lost innocence,” “hard-edged cynicism” and “desperate desire” of that movie genre — most obviously when House managers dismissed any due process in an impeachment proceeding. Indisputably, the House could have held at least a couple days of hearings and still impeached Trump before he left office. It knew the Senate would not hold a trial before the end of his term, so it had until Jan. 20 to impeach him. It did so on Jan. 13.
A hearing would have given Trump a formal opportunity to respond to the allegation against him; no one has ever been impeached without such an opportunity. It would have allowed witnesses to be called (including many who already were speaking publicly), to create even a minimal record for the trial. Yet the House refused, and then declined for more than four weeks to call a dozen witnesses with direct evidence to create a record even after its snap impeachment.
So the House could have afforded basic due process but chose not to do so simply because it does not have to. When confronted about this in the Senate, one House manager scoffed at the notion that Trump should be afforded more due process. Representative Ted Lieu said, “Trump is receiving any and all process that he is due.” A chilling answer, since Trump received none in the House. There was a time when denying due process would have been shocking. Even if you believe that due process is not required in an impeachment, it is expected. We do not afford due process to people simply because we have to.
It is like decency, civility and other values. They are not observed because they are mandatory but because they are right. It is a value that defines us and our actions. Moreover, this is a process dedicated to upholding the Constitution. To deny a basic constitutional value in its defense is akin to burning down a house in the name of fire safety. Yet, the House’s position is that a president can be impeached and tried without any record of a hearing, an investigation or witnesses.
Then came the matter of free speech. Trump’s defense argued that it is inherently wrong to impeach a president for speech that is protected under the First Amendment. The House managers cited a letter from law professors declaring the argument “frivolous” even though some of those professors believe Trump’s speech may indeed be protected under cases like Brandenburg versus Ohio.
Understanding how such language would be considered protected by the courts is relevant in whether it should be treated as a constitutional violation for the purpose of impeachment. Just as courts balance the value of criminal prosecution against the impact on free speech, the Senate can strike that same balance in an impeachment trial. Even if you believe the First Amendment does not apply in a case of incitement, you still must decide if this represented incitement or an exercise of free speech. Yet in a letter that spun with circular logic, the professors declared that “the First Amendment does not apply” to impeachment proceedings. At least not in a trial of Trump.
House managers were asked why they did not present a case with specific elements of incitement set forth by the Supreme Court. Lead manager Representative Jamie Raskin said blissfully this case and Trump are a one-time instance of “presidential incitement” with its own ill-defined elements. In other words, it doesn’t have to meet the definition of incitement. Under such logic, the House could have impeached Trump for Endangered Species Act violations and said it need not involve any endangered species.
This impeachment trial captures our age of rage. For four years, people claimed total impunity in discarding legal or journalistic standards. They claimed that attacks on free speech, due process, or media objectivity are noble in pursuit of Trump. You can be lionized for tossing aside such values in order to get him. A few years ago, a trial would have been viewed as wrong without direct evidence, due process, or clear standards. Yet this is a trial of Trump, and many have allowed Trump to define them more than their values. Like “Gilda,” they are willing to destroy their values to destroy him.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He was called by House Republicans as a witness with the impeachment hearings of Bill Clinton and Donald Trump, and has also consulted Senate Republicans on the legal precedents of impeachment in advance of the current trial. You can find him on Twitter @JonathanTurley.