Democrats will leave the Constitution "in tatters" if they pursue impeachment of President Donald Trump during the final days of his administration, legal scholar Jonathan Turley said.
In a Saturday op-ed piece for The Hill, Turley warned that Democrats were adopting a standard of, as author Franz Kafka once wrote, "Guilt is never to be doubted."
"The damage caused by the rioting [at the Capitol] this week was enormous, however, it will pale in comparison to the damage from a new precedent of a snap impeachment for speech protected under the First Amendment," Turley wrote. "It is the very threat that the framers sought to avoid in crafting the impeachment standard.
"In a process meant to take deliberative judgments, the very reference to a snap impeachment is a contradiction. In this new system, guilt is not to be doubted and innocence is not to be deliberated. It would do to the Constitution what the rioters did to the Capitol and leave it in tatters."
Demonstrators protesting the presidential election results stormed the Capitol on Wednesday during a joint session of Congress that met to certify the Electoral College votes. Earlier, Trump addressed a rally of supporters and encouraged them to stand up for perceived injustice.
Turley, who testified in previous impeachment proceedings against former President Bill Clinton and Trump, said the president's words "do not meet the definition of incitement under the criminal code. Indeed, it would be considered protected speech by the Supreme Court."
"Despite broad and justified condemnation of his words, Trump never actually called for violence or a riot," Turley said. "Rather, he urged his supporters to march on the Capitol to express their opposition to the certification of electoral votes and to support the legal challenges made by some members of Congress. He told the crowd 'to peacefully and patriotically make your voices heard.'"
A criminal defense attorney, Turley mentioned conservatives had cited Rep. Maxine Waters, D-Calif., who called for people to confront Republicans in restaurants, and Rep. Ayanna Pressley, D-Mass., who insisted during violent marches last year that "there needs to be unrest in the streets," as Democrats who incited violent behavior.
"They can all legitimately argue that their rhetoric was not meant to be a call for violence, but this is a standard fraught with subjectivity," he said.
Turley, Shapiro Professor of Public Interest Law at George Washington University, said the rush to impeach Trump would damage both the impeachment standard and the right to free speech.
"Under [Democrats’] theory, any president could be removed for rhetoric seen to have the 'natural tendency' to encourage others to act in a riotous fashion," Turley said. "Even a call for supporters to protest peacefully would not be a defense. This standard would allow for a type of vicarious impeachment that attributes conduct of third parties to a president for the purposes of removal."
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