RUTHFULLY YOURS

“Let them impeach and be damned.” Those words could have easily come from Donald Trump, as the House moves this week to impeach him. They were, however, the words of another president who not only shares some striking similarities to Trump but who went through an impeachment with chilling parallels to the current proceedings. The impeachment of Trump is not just history repeating itself but repeating itself with a vengeance.

The closest of the three prior presidential impeachment cases to the House effort today is the 1868 impeachment of Andrew Johnson. This is certainly not a comparison that Democrats should relish. The Johnson case has long been widely regarded as the very prototype of an abusive impeachment. As in the case of Trump, calls to impeach Johnson began almost as soon as he took office. A southerner who ascended to power after the Civil War as a result of the assassination of Abraham Lincoln, Johnson was called the “accidental president” and his legitimacy was never accepted by critics. Representative John Farnsworth of Illinois called Johnson an “ungrateful, despicable, besotted, traitorous man.”

Johnson opposed much of the reconstruction plan Lincoln had for the defeated south and was criticized for fueling racial divisions. He was widely viewed as an alcoholic and racist liar who opposed full citizenship for freed slaves. Ridiculed for not being able to spell, Johnson responded, “It is a damn poor mind that can only think of one way to spell a word.” Sound familiar? The “Radical Republicans” in Congress started to lay a trap a year before impeachment. They were aware that Johnson wanted their ally, War Secretary Edwin Stanton, out of his cabinet, so they then decided to pass an unconstitutional law that made his firing a crime.

To leave no doubt of their intentions, they even defined such a firing as a “high misdemeanor.” It was a trap door crime created for the purposes of impeachment. Undeterred, Johnson fired Stanton anyway. His foes then set upon any member of Congress or commentator who dared question the basis for the impeachment. His leading opponent, Representative Thaddeus Stevens of Pennsylvania demanded of them, “What good did your moderation do you? If you do not kill the beast, it will kill you.”

As with Trump, the Johnson impeachment was a fast and narrow effort. On paper, his was even faster, since Johnson was impeached just days after the approval of an inquiry. But the underlying investigation began more than a year earlier and was actually the fourth such effort. Yet it also was largely based on the single act of firing Stanton. It collapsed in the Senate due to seven courageous Republicans who voted to acquit a president they despised. One of them, Edmund Ross of Kansas, said that voting for Johnson was like looking down into his open grave. Ross then jumped because he felt his oath to the Constitution gave him no alternative.

The Trump impeachment is even weaker than the Johnson impeachment, which had an accepted criminal act as its foundation. This will be the first presidential impeachment to go forward without such a recognized crime but, like the Johnson impeachment, it has a manufactured and artificial construct. The Trump impeachment also marks the fastest impeachment of all time, depending on how you count the days in the Johnson case.

Take the obstruction of Congress article. I have strongly encouraged the House to abandon the arbitrary deadline of impeaching Trump before Christmas and to take a couple more months to build a more complete record and to allow judicial review of the underlying objections of the Trump administration. But Democrats have set a virtual rocket docket schedule and will impeach Trump for not turning over witnesses and documents in that short period even though he is in court challenging congressional demands. Richard Nixon and Bill Clinton both were able to go to court to challenge demands for testimony and documents. The resulting judicial opinions proved critical to the outcome of the cases.

Under the theory of the House, members can set any ridiculously short period and then impeach a president who, like Trump has done, seeks judicial review over claims of executive privileges and immunities. It is another trap door impeachment. Democrats did subpoena documents until October but have not issued any subpoenas for critical witnesses such as John Bolton. They did not hold a vote for an inquiry until the end of October. They set a vote for December to manufacture a time crush.

The same is true with the abuse of power article. I testified that the House had a legitimate reason to investigate this allegation and, if there was a showing of a quid pro quo, could impeach Trump for it. Democrats called highly compelling witnesses who said they believed such a quid pro quo existed, but the record is conflicted. There is no statement of a quid pro quo in the conversations between Trump and the Ukrainians, and White House aides have denied being given such a demand. Trump declared during two direct conversations, with Republican Senator Ron Johnson and Ambassador Gordon Sondland, that there was no quid pro quo.

One can question the veracity of his statement, as he likely knew of the whistleblower at the time of the calls. But there is no direct statement in the record by Trump to the contrary. Democrats and their witnesses have instead insisted that the impeachment can be proven by inferences or presumptions. The problem is that there still are a significant number of witnesses who likely have direct evidence, but the House has refused to go to court to compel their appearance. The House will therefore move forward with an impeachment that seems designed to fail in the Senate, as if that is a better option than taking the time to build a complete case.

With half of the country opposing impeachment, the House is about to approve two articles of impeachment designed to play better among progressive activists than in the Senate. Meanwhile, a lack of tolerance for constitutional objections is growing by the day. Some critics have actually cited Johnson as precedent to show that impeachment can be done on purely political grounds. In other words, the very reason the Johnson impeachment is condemned by history is now being used today as a justification to dispense with standards and definitions of impeachable acts. One commentator has embraced the use of Johnson as precedent with a statement that might make every “Radical Republican” from the 19th century smile, saying, “At least they impeached the motherf—-r.”

Indeed, many Democrats seem to be taking away the wrong lesson on impeachment from Johnson himself, who declared, “Whenever you hear a man prating about the Constitution, spot him as a traitor.” This is how history not only repeats itself, but repeats itself with a vengeance.

Jonathan Turley is the chair of public interest law at George Washington University and served as the last lead counsel in a Senate impeachment trial. He testified as a Republican witness in House Judiciary Committee hearing in the Trump impeachment inquiry. Follow him @JonathanTurley.