Turley's Position Congress Must Work Through Courts to Enforce Subpoenas Not Supported by Fox News Legal Experts, His Own Previous Testimony

Prof. Jonathan Turley

Earlier this week, the House Judiciary Committee held a hearing with four constitutional law experts to discuss impeachment.  Three of the law professors, who were called as witnesses by the Democrats, said the bar for impeachment had been met.  The fourth one, Prof. Jonathan Turley, who teaches at the George Washington University Law School, disagreed.  Prof. Turley, the Republican's witness, said the Democrats had not yet compiled the evidence to make the case.  Of course, much of that is due to the fact President Trump has ordered employees of the executive branch to ignore all congressional subpoenas in the impeachment probe, i.e. to not testify or turn over any documents.

Turley argued that Trump's ordering executive employees to not comply with subpoenas  is not obstruction of justice.  The professor instead said that Congress must work through the courts to enforce its subpoenas and, until it does that and the President doesn't comply after the final appellate court rules on the issue, there is no obstruction of Congress  Of course, Congress being forced to litigate all the way to the United States Supreme Court every time it wants to enforce a congressional subpoena allows President Trump to run out the clock on impeachment.

Prof. Turley's position as to impeachment is so completely unfathomable, so bizarre even Fox News legal analysts disagreed with it.  Newsweek reports: 

[Judge Andrew} Napolitano said that the House has power of impeachment which supersedes the president's executive privilege. While mentioning the Supreme Court's ruling that the president has a limited executive privilege when documents are requested from the judicial branch, Napolitano pointed out that was not the source of the request. 

He added that the president's executive privilege only extends to matters of military, diplomatic and national security matters. 

While Napolitano mentioned his friendship with Turley, he said that Turley was "forgetting" that the House has sole—"s-o-l-e"—power of impeachment. 

"It doesn't need to go to a court for approval, it doesn't need to go to court to get its subpoenas enforced." Napolitano continued. "When the president receives a subpoena—or in this case, Mick Mulvaney, Mike Pompeo receive a subpoena—and they throw it in a drawer, they don't comply or challenge because the president told them to, that is the act of obstruction." 

He concluded that Turley's argument that the House needs to go to court to have their subpoenas enforced was a "misreading" of the Supreme Court ruling. 

Andy McCarthy, another guest on the panel, agreed with Napolitano's interpretation. 

"We could debate all day about whether a particular obstructive act would qualify as the framers' idea of a high crime and misdemeanor. The fact of the matter is, if it was trivial, or if it was a one-off, or if it was not suggestive of a heinous pattern of conduct, that Congress would not dare try to impeach over it," McCarthy said."I don't think the framers would have thought to that the Article 1 branch needed the assistance of the Article 3 branch to impeach an officer of the Article 2 branch," he added. "I don't think that's conceivable."

It should be added that McCarthy is a former prosecutor in the Southern District of New York, a National Review columnist, and a consistent presence on Fox News defending 99% of the time every position taken by the Trump administration. It would be hard to find a more loyal Trumper than Andrew McCarthy.

But there is someone else who doesn't agree with Professor Turley.  His name is...Professor Turley.  In June of 2016, Turley testified before the U.S. House which was investigating the alleged misconduct of the then IRS Commissioner John Koskinen who was accused of using his office to target conservative groups.  In his written statement, Turley bemoaned the increasing practice of the Obama administration not complying with congressional subpoenas.  Prof. Turley argued that Congress did not have to work through the courts to seek compliance, that Congress, under Article I, had the inherent power to enforce its own subpoenas.  2016 Prof. Turley also said executive branch non-compliance with congressional subpoenas is an obstructive act.  2019 Prof. Turley says that the executive branch has not committed an act of obstruction until it does not comply with court orders enforcing congressional subpoenas.

Unfortunately, it does not appear that anyone at the hearing confronted Prof. Turley about his evolving (devolving?) legal position regarding congressional subpoenas.  Even more unfortunately, Democrats on the Judiciary Committee didn't take the opportunity to call any of the scores of conservative, Republican legal scholars who support their position on impeachment and enforcement of congressional subpoenas.  It was a missed opportunity.

Analysis Show Democrats in 2018 Made Significant Gains in Indiana State House Races

One thing that's always been true about Indiana politics  (at least as long as I can remember) is that Democratic candidates generally do better during presidential election years than during mid-terms.  In short, Hoosier Democrats typically are not as good at going to the polls as Republicans. Indiana Democrats tend to only want to show up for the big marquee event every four years when the Presidential race is on the ballot.

But Democrats, since Trump's election in 2016, have been energized and mobilized, even in the Hoosier state.  That's showing up in the numbers.

I did a comparison of the D v. R vote in Indiana state house races, 2016 v. 2018.  In particular I looked at those that had major party candidates squaring off in the district in both years.  Of the 100 house races, I found 50 had major party competition in 2016 and 2018.  Of those 50, Democratic candidates saw an increase in their percentage of the vote in 37 districts

Not surprisingly, the greatest movement toward Democrats has been in the more suburban districts, particularly around Indianapolis.  Below is a chart showing the numbers in the districts in which Democrats gained 3% or more.

Dist	2016 D Pct	2018 D Pct	Change	Winner 2018
87	52.2%	62.2%	10.0%	Hamilton (D)
88	34.7%	44.5%	9.8%	Bosma (R)
37	36.0%	45.5%	9.5%	Huston (R)
26	47.4%	56.7%	9.3%	Campbell (D)
75	30.8%	38.8%	8.0%	Bacon (R)
81	39.1%	46.3%	7.2%	Carbaugh (R)
39	36.1%	43.0%	6.9%	Torr (R)
90	33.3%	39.7%	6.4%	Speedy(R)
93	32.6%	37.6%	5.0%	Frizzell (R)
41	22.1%	26.8%	4.7%	Brown (R)
63	28.2%	32.8%	4.6%	Lindauer (R)
15	45.7%	50.2%	4.5%	Chyung (D)
60	36.6%	41.0%	4.4%	Mayfield (R)
89	45.4%	49.5%	4.1%	Kirchhofer (R)
55	23.7%	27.8%	4.1%	Ziemke (R)
84	33.9%	37.4%	3.5%	Morris (R)
23	29.6%	33.0%	3.4%	Manning (R)
58	33.4%	36.7%	3.3%	Burton (R)
32	25.1%	28.4%	3.3%	Cook ( R)

Obviously, the transformation of retiring Speaker Brian Bosma's district into a competitive battleground stands out  Bosma could have faced some stiff competition in 2020.  Now that he is bowing out, picking up seat will be an even bigger priority for the Democrats.

Just north of Bosma's district is that of the next Speaker-Elect Todd Huston.  Like Bosma, Huston's district has suddenly become competitive.  Making him a target in the next election will likely cause him to spend precious resources protecting his own turf instead of helping fellow Republican incumbents.  

Then there is District 91.  Anchored on the southwest side of Indianapolis, the district is  represented by Republican Robert Behning.  In 2016, Democrats did not even have a challenger against Behning.  In 2018, Democrats not only found a candidate, he received 40% of the vote.  

Note: as a rule of thumb, once the losing party gets to 40%, it is considered a competitive district.  When it gets to 45%, it is highly competitive.  That is a very general rule though as factors like incumbency affect the competitiveness of a district.

There were a few House districts in which the Democratic incumbents lost ground in 2018.  Districts in which Democrats saw their numbers drop 3% or more are in the following table:

Dist	2016 D Pct	2018 D Pct	Change	Winner 2018
65	37.3%	30.7%	-6.6%	May (R)
66	60.3%	54.6%	-5.7%	Goodin (D)
56	38.7%	33.1%	-5.6%	Barrett (R)
11	39.5%	34.7%	-4.8%	Aylesworth (R)
42	43.4%	39.6%	-3.8%	Morrison (R)
68	24.9%	21.3%	-3.6%	Lyness (R)

Those are the more rural districts.  In addition to Goodin's district, Republicans appear to have an excellent shot at picking up District 35 which went from 52.5% Democrat in 2016 to 50.6% in 2018.

As Republicans hold 67 of the 100 seats in the Indiana House, the GOP will almost certainly hold onto its majority after the 2020 election.  But the data suggest Republicans will continue to lose seats as suburban districts continue to become more favorable to Democrats.

Indianapolis/Marion County Precinct Election Data Shows Voters Fleeing GOP in Droves

For two weeks, I've been eagerly waiting for the Marion County Election Board to release the election results, by precinct, of the Indianapolis municipal election.   There is no better gauge of what is going to happen in the future, than to look at election results, make adjustments, and ascertain the trends the data represent.  The best data to determine the partisanship of an area is to look at the result of baseline races.  Baseline races are races down the ballot where voters generally do not know
the candidate and they default to voting their party.  Races like county surveyor, county recorder, etc.

Unfortunately, the races contested in the 2019 municipal elections in Indianapolis do not provide a good baseline.  The mayoral candidates are too well known, and even local council races might feature candidates familiar to voters in their district.  Plus, council candidates sometimes run unopposed, which throws off the overall D-R numbers in the county.

For my analysis, I decided to take a look at the Mayor's race.  In 2015, Democrat Joe Hogsett won his first term as mayor by defeating businessman and political novice Republican Charles Brewer 62% to 38%.  In 2019, Hogsett faced a more politically experienced opponent, State Senator Jim Merritt, and won even more convincingly, 72% to 27%.

Below is a table showing how many precincts the Republicans won in the 2015 Mayor's race versus 2019, broken down by the old city limits (the wards which are mostly, but not completely in Center Township), and the township precincts that are not part of the city wards.

Area	Total Pcts	2015 R Won	2019 R Won
City Wards &  Center Outside	214	2	0
Decatur Twp	16	12	6
Franklin Twp	29	25	13
Lawrence Twp	67	28	3
Perry Twp	58	46	5
Pike Twp	51	2	0
Warren Twp	36	9	1
Washington Twp	69	13	0
Wayne Twp	60	20	3
	600	157	31

While Sen. Merritt did run worse than most (all?) GOP council candidates in their respective districts, those Republican council candidates also did terrible, losing 20 of 25 districts.   The only GOP council members will now be from the southside and even two of those districts proved competitive on election day.

These precinct numbers should be a red flashing light to the Indiana State Republican Party.  Many Republican state legislative districts include a significant number of Marion County precincts if not a majority.  While the last redrawing of the General Assembly maps extended those districts into the GOP heavy suburban doughnut counties, that may not be enough to save them.  Hamilton County, for example, saw an acceleration in a Democratic trend, so much so that Democrats won city council seats in Fishers and Carmel.

Furthermore, the Marion County and suburban trend toward Democrats show the vulnerability of GOP statewide candidates who will be on the ballot in 2020, including Governor Eric Holcomb.
Previously, I documented how the statewide GOP candidate numbers were significantly down from 2014 to 2018.  But those mid-term elections tend to be much better for Republicans and thus GOP statewide candidates can lose a significant number of votes and still comfortably win. That's not the case with presidential election years when Democrats tend to be more competitive statewide.