Outside the Beltway

Jonathan Turley Continues to be a Hack

I guess the attention is worth it?

Steven L. Taylor · Saturday, June 8, 2024 · 5 comments

There was a time (although at this point it has been a while) when I thought Jonathan Turley was a reasonable commentator. Somewhere along the way the George Washington University law professor clearly decided being a pundit required being a partisan hack.

His latest piece, The Ghost of John Adams: How the Trump Trial Harkens Back to a Dark Period of American Law, illustrates the point. The piece is mostly about the prosecution of James T. Callender under the Alien and Sedition Act during the Adams administration. The attempt to draw a parallel to the recent trial of Trump is, to my mind, tortured, but no doubt was of great solace to defenders of the former president.

I would note that Callender was prosecuted for speech under a law that was passed to curtail speech (and that was blatantly unconstitutional). There are no parallels here to Trump. As a law professor Truly has to know that he is engaging in deceptive inflammation of his readers by trying to draw this false parallel.

But let me note the following, which is the basis of the comparison, I suppose, but also something I have been hearing since the verdict:

Political prosecutions are something most citizens associate with dictatorships.

My immediate counter is: prosecutions of those who have committed crimes, even the most powerful, is something that most citizens associate with democracy and the rule of law.

The notion, moreover, that a prosecution of a politician (which is inherently political) is to be eschewed because of politics is to suggest that politicians are above the law.

But the Trump prosecution has forced many to confront the undeniable reality of the politicization of our legal system.

So here’s the deal. It is obviously utterly impossible to deny that “politics” is irrelevant to this case. The DA, Alvin Bragg, is an elected official (politics!).* Trump is a former president (politics!). Trump is the presumptive nominee (politics!). The case is about election interference (politics!). The whole thing is about power (politics!).

Choosing to prosecute has clear political implications.

Likewise, the choice not to prosecute has political implications.

Politics.

Politics.

Politics.

It is impossible to escape the politics of it all.

As a general matter, the notion that the trial of a former president wouldn’t be steeped in the political is absurd to the point that bringing it up as some kind of “gotcha” is ridiculous. And I cannot stress enough, that not prosecuting someone because of their political status would also be deeply political and in a way far, far more damaging to democracy and justice than the other way around.

But the politics of it all does not change the recitation of facts in the courtroom, nor the testimony of the witnesses nor the conclusion of a legally appointed and vetted jury.

Further, and along those lines, I will stress again that truly “political” prosecutions of the type that Turley is suggesting are prosecutions that have little to do with legal facts, testimony, and the conclusions of juries. Political show trials in dictatorships are about punishing enemies regardless of evidence and not in the context of actual established procedures. See, e.g., Navalny, Alexei for show-trial level political prosecutions of the type associated with dictatorships.**

Turley is certainly educated enough to know this.

Moreover, he is educated enough to know the logical problems with the following:

In many respects, President Biden and Democrats have re-created the Adams era.

Full stop.

The trial in question was not a federal trial. Biden was not in charge of it (nor is he in charge of federal trials, what with separation of powers and all). He did not oversee the passage of the law that Trump was prosecuted under. The trial in the State of New York has nothing to do with Joe Biden. I am certain that Turley learned the difference between state and federal court during his time at the Northwestern University School of Law, if not when he was an undergraduate at the University of Chicago.

His pivot in the column to Biden, much like his problematic parallels to John Adams, obfuscates the actual facts of the Trump trial.

Biden has led calls for censorship of political critics and his administration has coordinated the silencing and the blacklisting of those with opposing views.

Democratic politicians have pressured social-media companies to serve as surrogates for the government in banning, throttling and defunding individuals and groups.

Indeed, I have previously written that Biden is now the most anti-free-speech president since Adams.

The Adams era also reflected the same blind loyalty of many media outlets.

Federalist publications supported the crackdowns while echoing charges against political opponents as seditionists and insurrectionists.

First, it is ironic for Turley, largely a creature these days of right-wing cable programming and a denizen of the pages of the NY Post to decry the “blind loyalty of many media outlets” is risible at minimum.

Second, it would be nice if he would provide some evidence for his assertions.

Third, and most importantly, what does any of this have to do with Trump’s conviction in New York?

Turley does eventually focus on the trial:

So Trump was convicted in a trial with a Biden donor judge, who has a daughter who is a major Democratic operative, a lead prosecutor previously paid as a DNC political consultant and a jury selected in a district that voted roughly 90% against Trump.

The trial itself was a travesty.

So, first: Marchan gave $35 in 2020 to ActBlue, $15 of which was earmarked for Biden. Should he have done that? No. But, let’s be real here, calling him a “Biden donor” is both correct and incredibly misleading. (And, quite frankly, Judge Cannon in the documents case appears to be acting far more partisanly than anything Marchan did).

Second, his daughter is allowed to have a job and to be political. This is a distraction (and is Turley echoing Team Trump).

Third, the jury was selected via a process that allowed for both sides to shape it. Quite clearly from reporting, this was not some rabid pro-Democrat group of people, regardless of how the district voted. If it is impossible to get 12 impartial jurors in any district, then the system is highly flawed.

Turley’s assessment of the situation strikes me as almost comedically over the top:

This was a thrill-kill conviction, and the response of many in the media bordered on the indecent.

For many outside of Manhattan, the scene was repulsive and chilling.

You can hate Donald Trump but still be repelled by the use of the criminal justice system for political purposes.

Or, you can see it as justice. I understand that different people’s miles may vary and that readers of the NY Post, where the column was first published, would be inclined to agree more with Turley than I do.

Weirdly, and contrary to Turley’s thesis, I guess all of this means that free speech is alive and well in the US.

He concludes his column, by the way, by throwing in some Joe McCarthy.

The desire to include two of the worst examples of political abuse in American history (the Alien and Sedition Act and Joe McCarthy) strikes me as inflammatory and not really on point. For whatever else you want to call it, the law in question and the prosecution in question are not parallels to Callender’s travails. Nor was this a public abuse of power to flog political enemies a la the McCarthy hearings.

And, look, the accusation that only Trump would have been prosecuted in this manner has some merit. There aren’t too many former presidents running around who paid hush money to a porn star to cover up an affair and did so while falsifying business records in the hopes of influencing an election.

The phrase sui generis comes to mind.

I understand that Turley is a libertarian who takes free speech seriously (and that this column is at least in part about promoting an upcoming book). However, Trump’s trial wasn’t a free speech trial and it bears very little in the way of comparison to either the Callender trial or the McCarthy hearings. But, on the other hand, defenders of Trump sure like hearing those comparisons!

*FYI: if it were up to me, prosecutors would not be elected.

**We all remember the echo-y press conference of Navalny ragging on the judges and Putin each day he was in court, yes? Or not.