Jonathan Turley, who I used to think was a perfectly reasonable guy when I saw him on the Keith Olbermann show, proffered a Trump defense to the House of Representatives that was, in a word, risible (risible is a word I learned from Monty Python). Now, unlike many, I think Turley was both wrong and (maybe) right. Let me explain.
His defense, such as it was, consisted of the assertion that, not having heard from all the witnesses, the House lacked the evidence to impeach Trump. Now, as a matter of law, given the evidence they had, this is a laughable proposition. By way of illustration, let us indulge in a little pretend. What follows is a completely made up scene in an American courtroom:
Defense counsel: Your honor, I submit that, the prosecution having rested, this case must be dismissed for lack of sufficient evidence. It’s quite true that the prosecution has produced multiple eye witnesses who saw my client shoot the victim on 5th Avenue, that my client himself has made multiple statements admitting his guilt, and one of his spokesman has stated that he did it, but the fact remains that there are multiple people in his entourage who were there that day who have not testified and …
(judge interrupts with question)
Defense counsel: Well, yes your honor, they have all left the jurisdiction at my client’s behest and have refused to return, but the fact remains that they could testify about what happened that day …
(judge interrupts again)
Well, no judge, I have never heard of an adverse inference. What’s that?
(judge explains basic legal principle)
Defense counsel: Really? I never knew that. I guess I should have finished law school after all.
I think that pretty much states the essence of the Turley defense.
So how is Turley right? Well, just maybe the Democrats should be drawing the thing out, drip drip dripping the evidence over the course of months, and pursuing the entourage through the courts, so as to build even more public support for impeachment. If that’s what Turley had in mind, he was, possibly, right, though it’s doubtful, coming from a guy with his record, that he did have that in mind. The fly in the ointment of that argument is the very real possibility that the courts, now dominated by Trump appointees, will rule that Trump (and, by implication, all other Republican presidents) has the right to withhold evidence. All things considered, it might be a good idea to avoid the possibility of a judicial decision that effectively declares that we live in a dictatorship whenever there is a Republican president, for we all know an exception would be made in the rule for a Democratic president..
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