|Prof. Jonathan Turley|
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."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.