It seems at times that every impeachment road leads back to Warren Hastings. I previously wrote about Hastings as I delved into the theories of bribery put forward by Democratic leaders and legal experts in the first impeachment against Trump. Now, Hastings is back as a historic precedent for the impeachment of former officials. As I have repeatedly stated, there are good faith arguments in favor of impeachment for ex-civil servants. Hastings, however, does not set a particularly strong precedent beyond the obvious point that the UK impeachment was applied retrospectively.
I have written only a few lines about retroactive impeachments in hundreds of pages of scripture on the subject in the past 30 years. After the Belknap case, this was simply not an issue for the United States. My previous interest in the Hastings case was to discover that impeachment procedures have some “dialogical” value to society and to challenge the “executive theory” argument on impeachment.
As I wrote earlier, Warren Hastings was the British Governor General in India who was despised by some in Parliament, including his greatest critic, Edmund Burke. Burke called him the “Captain General of Injustice” and a “Spider of Hell”. He later added the label of a “voracious vulture devouring the carcasses of the dead”. Burke directed the impeachment of Hastings, who was arrested in 1787 by the non-commissioned officer of Parliament.
Hastings has been charged with bribery and other forms of abuse of power by the impeachment committee. The case dragged on for seven years before Hastings was acquitted on any impeachment trial. Although Hastings has done some shady personal financial deals, his impeachment is now widely viewed as an injustice, and Burke was ultimately censored for his “moderate” rhetoric.
There are many aspects of the Hastings Process that have been dismissed as abusive and would certainly not be tolerated in the United States, including retrospective litigation. The Hastings Trial is undeniably relevant as it was brought to justice after he left office. However, it shows how this practice can be used for crude and “moderate” purposes.
That is why I have repeatedly said that people on both sides are having trouble dealing with this novel impeachment. In my 1999 Duke Law Journal article on impeachment, I wrote: “[t]However, the Senate majority rightly believed that impeachments had historically been extended to former officials such as Warren Hastings. “See Jonathan Turley, Senate Trials and Faction Disputes: Impeachment as a Madison Device, 49 Duke Law Journal 1-146 (1999) (emphasis added). It was actually used retrospectively in the UK. However, there are significant differences in the application of impeachment in both countries. Indeed, the colonial impeachments were strikingly different in many ways. As I noted in the Duke’s article, “Even if the only punishment is disqualification from future office, the open presentation of evidence and witnesses is exactly what was missing in colonial impeachments.” This has remained an open question and much controversial in the United States, as I found in my later article in North Carolina. Jonathan Turley, The “Executive Function” theory, the Hamilton affair, and others Constitutional Mythologies, 77 North Carolina Law Review 1791-1866 (1999). The point of this piece is that impeachment is not limited to violating an executive function, but can include other violations such as perjury. We have the value of a trial for public judgment on past conduct and the cost of a retrospective trial of the constitutional system. That has remained unsolved. The previous discussion was about how impeachment plays some kind of dialogical role in our society. Such attempts, as with Trump, can have value. However, there are also serious compensation costs that are equally evident in Trump’s case.
There are many differences between the UK and the United States in terms of language development and impeachment procedures. There has been big debate about including “maladministration” as a basis for impeachment. There was also the debate in the first impeachment about retroactive or ex post impeachment.
This subject was not the focus of my previous writings – or that of most of us who have written about impeachment in previous years. I saw it as an open question. One can see the historical use of retroactive impeachments and the value of such procedures without confirming their use.
The Trump impeachments will force us to set new precedents for the impact of the process used in both impeachments. I’ve spent a lot of time looking into this topic over the past few weeks. Ironically, while some have claimed I mistakenly changed my views on the Clinton impeachment, the truth is that my views on the impeachment have changed little in 30 years. In the Clinton impeachment, I stated that a president does not have to commit a crime to be charged, but that Congress has looked at the criminal code in the past to weigh impeachment proceedings. In the impeachment of Clinton, the Democrats accepted (as ultimately did a federal court) that Clinton had committed perjury – an outright crime – for lying under oath. In my view, it was clearly unimpeachable conduct and it did not matter to the subject of perjury. (I’ve also long claimed that a president in office can be indicted, including most recently Donald Trump).
In the Trump impeachment, I didn’t think there was an outright criminal offense. Still, I said he could be charged. In my written and oral testimony, I have spoken out against the much-discussed impeachment proceedings on bribery, extortion, campaign funding and obstruction of justice. While my witnesses argued in good faith for these articles, my testimony focused primarily on the legal and constitutional flaws in the enforcement of these crimes. However, I said that the committee could rightly sue allegations of obstruction of Congress and abuse of power. Indeed, at the end of the impeachment hearing, the judge’s chief Jerry Nadler stated that I endorse the basis of the two articles if this is proven. The Senate Trial Property Managers later repeatedly cited my testimony on these and other points in support of their call for condemnation. I also explicitly opposed the impeachment theory put forward by the White House legal team. Ultimately, the House indicted the two articles that I said would be legitimate if proven.
My disagreement with the House was ultimately not based on the two articles but rather on the failure to keep an adequate record. House leadership said the impeachment must be completed by the end of December – the shortest amount of time for the president to be impeached. I encouraged further hearings for a few weeks to secure the testimony of important witnesses or court orders in favor of the House. I stated that this protocol would guarantee failure and that the Senate would not call on these key witnesses (although I later supported the House in making that call before the Senate). Ultimately, the House pushed through the vote and then waited weeks to submit the articles to the Senate. As expected, the witnesses were not called and the President acquitted.
Such points may seem nuanced and irrelevant in today’s acidic and furious debate. The same applies to retroactive removal from office. My earlier writings recognized that such attempts can have dialogical value. I still believe that. Now, however, we need to deal directly with the issue of the ex-president trial. We must now all reconcile the merits of the history, language, and logic of retroactive impeachments. While I still acknowledge that this is a bona fide debate, I believe that such balancing should result in the practice being rejected, like other UK historical practices, in cases like Warren Hastings’.