Advocates Gonna Advocate

ballistics expert

Yesterday, Professor Turley’s role was as an expert witness advocate, not a scholar delivery an unbiased opinion grounded in factual and legal scholarship. Dana Milbank nails down the point:

[Turley] made almost exactly the opposite case against President Barack Obama in a 2013 hearing. “This will not be our last president,” he argued then, saying it would be “very dangerous” to the balance of powers not to hold Obama accountable for assuming powers “very similar” to the “the right of the king to essentially stand above the law.”

Now we have a president soliciting campaign help from a foreign country while withholding military aid, then ignoring duly issued subpoenas — and Turley says Congress would be the entity committing an “abuse of power” if it holds Trump to account. Trump shared that quote on Twitter.

Back in 1998, arguing for President Bill Clinton’s impeachment, Turley said there was “no objective basis” to claim that the Framers intended a “restrictive definition of ‘high crimes and misdemeanors.’ ” Now Turley argues that the Framers intended a restrictive definition, applying “bribery” only to “money” transactions.

How Did Turley Do as an Advocate?

Tone and Manner

He affected the tone and manner of a coolly aloof, highly confident person masquerading as an objective expert, all while mouthing arguments in support of his client.

Pretty much what you want in an expert witness.

I turn now from theater criticism to substance.

Turley’s Approach to His Job as Expert Witness Advocate

Let’s say you are an advocate—whether as lawyer or expert witness, it doesn’t matter, because you’re all on the same team—for a bad client with a rotten case. There are two things you don’t want to do, and one thing you do want to do.

You do not want to just throw spaghetti at the wall, in a transparently desperate effort to divert the judge’s and the jury’s attention from your client’s wickedness. It’s unethical, but it’s still a bad idea, even if you lack scruples, because it’s unlikely to work.

And, if you’re an expert witness, you do not want to abuse your credentials as an expert by offering an opinion that is just bullshit. If, for example, you are an expert on materials science, you do not want to offer bullshit testimony about tensile strength. (One: you’ll get found out. Two: because you’ll get found out, your client will probably lose. Three: it’s really bad for your future employment prospects as an expert witness.)

Here’s what you do want to do: you want to ask yourself, “Self, what plausible or semi-plausible arguments can I make that do not make me look like a charlatan and sound like a fool?” If that’s the way you approach the task, you will probably find some plausible or semi-plausible arguments that fill the bill.

I would say that Turley generally approached his with the right mindset.

The Standard of Impeachability and the Constitutional Definition of “Bribery”

He probably did about the best he could do to support a losing case.

Ditto for the views he shared on the timing of impeachment.

Likewise for his opinion on the “thinness” or “thickness” of the factual record.

He probably understood that his job was not to convince the unpersuaded. His job was to give the Trump Cultists some talking points that would appeal to them.

A Bridge Too Far for Professor Turley

For legal scholars and advocates, thinking about hypothetical cases is as natural as eating a ham sandwich for lunch. So the professor thought of a hypothetical case: a case where Congress—or at least one branch of Congress—violates the balance of power by refusing to recognize the judicial branch’s constitutional right to referee disputes between the legislature and the executive over what is or is not a proper assertion of executive privilege, and over what documents and testimony must or must not be provided in response to a congressional subpoena.

Turley’s expert opinion was that, in such a case, Congress would be abusing its power.

And so it would, in that hypothetical case.

It’s a perfectly fine hypothetical, and Turley’s analysis is perfectly fine.

The problem is that in the real world, it’s not Congress that is denying the constitutional principle of checks and balances. It’s Trump.

It was unprofessional for Turley, even as an advocate, to ignore or misstate legally relevant facts.

Auditioning for Defense Counsel in the Senate Trial?

I believe that is what Turley is up to.

Clearly, the job is currently vacant.

Turmp could do a lot worse. And probably will.