Support Our Journalism

Smart. Sharp. Funny. Fearless

Politics National News World Economy Lifestyle Store

Start your day with The National Memo Newsletter

Tag: jonathan turley

What Fox Analyst Turley Gets Wrong About Trump (Nearly Everything)

Following news of former President Donald Trump’s recent federal and Georgia indictments, Fox News utilized its top legal contributor Jonathan Turley to promote faulty arguments in Trump’s defense. Fox News invited the George Washington University law professor to comment about Trump indictments in 22 appearances between August 1 and August 25, more than any other legal contributor.

A federal grand jury indicted Trump over his attempt to overturn the 2020 election results

Trump’s first August indictment focused on his attempts to overturn the 2020 election results. While Trump’s infamous claims of nonexistent voter fraud and appeals to illegally overturn the election were a central focus of the indictment, legal experts have pointed out that he is being charged for his alleged criminal actions, not for his speech.
On August 1, a federal grand jury indicted Trump on four charges. As CBS reported, these charges include “conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.” [CBS, 8/2/23]
The indictment specifically stated Trump had a right to free speech, even if his claims were false. The second page of the indictment noted that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” [The Washington Post, 8/19/23]
While Trump’s spoken words and social media posts are used as evidence in the indictment, that evidence is used to prove the motive behind his actions. As noted by legal experts, “Trump is being prosecuted for his deeds, not his words.” While Trump had the right to claim the election was stolen, he did not have the right to attempt to throw out the lawful results through a criminal conspiracy. [Media Matters, 8/10/23]
Former U.S. Attorney Barb McQuade told Salon: An indictment does not require “a recitation of all of the evidence.” She added, “All that is required is a brief, plain statement of the charge.” The Salon piece also quoted Hofstra University’s School of Law professor James Sample arguing it’s “reasonable” to anticipate the release of new evidence later into the trial. [Salon, 8/3/23]

Jonathan Turley pushed a false narrative that Trump is being charged for “free speech” and claims the indictment is a threat to the First Amendment.

Turley incorrectly claimed that DOJ special counsel Jack Smith was indicting Trump for misinformation. He stated that Trump is “being indicted for spreading lies. That's what the indictment says over and over again, and they insist that he knew they were lies.” [Fox News, The Story with Martha MacCallum, 8/3/23]
Turley stated Trump is “being charged with lying” and argued the indictment raises “free speech concerns.” He stated, “There are legitimate free speech concerns raised by these charges. Essentially he's being charged with lying and the government is saying you can make false statements in an election, but not if you know that they're false. But they don't really establish that he knew that they were false, even if that theory is correct.” [Fox News, America Reports, 8/3/23]
Turley argued that Trump is protected from charges in the January 6 indictment because of the First Amendment. He claimed, “It does not appear that this was motivated by new evidence, and in order to get a conviction, he [Smith] will have to use material that, in my view, is clearly protected by the First Amendment.” [Fox News, Special Report with Bret Baier, 8/1/23]
Turley floated the idea that indicting Trump and penalizing him over his actions on January 6 would “criminalize false political speech.” He claimed, “It's unlikely he [Trump] will get a trial put in front of the Florida trial, but they very well could help him out in moving these issues to the appellate court and asking them is this the criminalization of disinformation? Are you about to criminalize false political speech? Because in the past, the Supreme Court has been extremely skeptical of laws that attempt to do that.” [Fox News, Your World with Neil Cavuto, 8/3/23]
Turley pushed the notion that indicting Trump would be a “slippery slope” to criminalizing incorrect speech. He stated, “If you start to criminalize issues like that, you find yourself on a slippery slope where the Department of Justice can arrest politicians for not accepting what they deem the evident truth.“ [Fox News, The Story with Martha MacCallum, 8/2/23]
Turley claimed that the indictment and upcoming trial of Trump is a “free speech killing case.” He said, “If free speech defines us as a nation, this is a free speech killing case, and we need to deal with those implications.” [Fox News, America Reports, 8/2/23]
On Fox host Brian Kilmeade’s radio show, Turley accused Smith of inventing new law to go after Trump and attacking the First Amendment. Turley stated, “Smith is trying to create new law here, and he doesn't cite any new evidence. That should disturb people. There's got to be some point where you say enough -- when you start to take a hatchet to the First Amendment in this quest to nail Trump.” [Fox Radio, Brian Kilmeade Show, 8/2/23]

Trump was also indicted in Fulton County, Georgia, for his attempt to overturn election results in the state — not his “free speech”

Similar to the federal grand jury indictment, the Georgia indictment laid out Trump’s many comments and speeches as part evidence of motive for his attempts to overturn the 2020 election results.

District Attorney Fani Willis charged Trump and 18 others up to 20 years in prison for racketeering, specifically violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act. According to the indictment, Trump and more than a dozen allies, including former chief of staff Mark Meadows and lawyers Rudy Guiliani and John Eastman, “refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.” [Reuters, 8/15/23; Insider, 8/14/23]

Willis began her investigation two years ago after Trump’s January 2021 phone call with Georgia Secretary of State Brad Raffensperger was leaked. During the call, Trump suggested Raffensperger could help “find 11,780 votes” because “we won the state.” [The Associated Press, 7/31/23]

The investigation followed several main investigative threads. These include Trump’s call with Raffensperger, his attempt to get fake electors to certify his victory, his false claims of election fraud, his harassment of election workers, and Trump-associated Sidney Powell’s unauthorized access to Georgia’s election equipment. [The Associated Press, 7/31/23]

New York University law professor: “It’s not *the speech* that's criminal. It’s what the speech *does*: constitute an element of another crime.” New York University School of Law assistant professor Noah Rosenblum debunked the free speech argument, also writing, “Here, Trump is charged with conspiracy. But the lies he made about the election are part of showing his knowing fraud — an element of a crime.” [Twitter/X, 8/1/23]

Legal expert Marc Elias has asserted that to prove Trump guilty, prosecutors do not need motive. The government “does not need to prove motive” and jury’s will be instructed as such. [Popular Information, 8/3/23]

There is “no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate.” In a piece for Slate, University of California, Los Angeles School of Law professor Richard L. Hasen also poked holes in the First Amendment defense, writing, “Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election.” [Slate, 8/1/23]

Turley argued the Georgia indictment could have a “chilling effect” on people wanting to challenge election results

Turley questioned if Trump’s actions in Georgia were actually a crime before claiming the indictment may hurt the ability to challenge elections. Turley stated, “Is it a crime to raise them [unproven election claims]? Is it a crime, even if these allegations were untrue, to make them, to a state legislature or to a court or to the public at large. The concern is that you can create a chilling effect.” [Fox News, Hannity, 8/14/23]

Turley insisted Trump did not commit a crime and that the indictment will criminalize election challenges. He stated, “It's excessive and I think it's also dangerous. It essentially criminalizes challenges to elections. … Democrats and Republicans challenge these elections routinely. … They aren't crimes. They are seeking judicial review.” [Fox News, America’s Newsroom, 8/15/23]
Turley again claimed the indictment could criminalize election challenges in the country and compared Trump’s actions to previous election challenges by Democrats. He insisted, “This is creating a slippery slope for all elections across the country. It is the criminalization of election challenges. And I can name off the top of my head 10 Democratic politicians that could be accused of similar conduct -- challenging elections with very little evidence.” [Fox News, Special Report with Bret Baier, 8/15/23]
Turley argued Trump’s tweets and speeches were being treated as a separate criminal act in the indictment when in fact they exist to display motive behind his actions. He said, “You look at this indictment, and every call, every tweet, every speech seems to be a separate criminal act that composes this conspiracy.” [Fox News, Fox & Friends, 8/15/23]
Turley warned the Georgia indictment would potentially set a precedent based around criminalizing what is in someone’s mind. He claimed, “We can all debate what was in Donald Trump's mind but is that really the basis of a criminal case? Is that what you want for future cases?” [Fox News, Hannity, 8/14/23]

But Trump’s call to Raffensperger was not an earnest attempt to legally challenge Georgia’s election results

Trump did not mention a recount at any point during the call. Furthermore, Georgia had already undergone two recounts prior to the call. As Mediate’s Michael Luciano states, “By the time Trump unsuccessfully leaned on Raffensperger, Georgia had already conducted two recounts. Moreover, telling an elections official to “find” votes in one’s favor as Trump did is not “making a case for a recount.” That is asking the official to make one the winner of an election.” [Mediate, 8/24/23]
The call demonstrated how Trump was not willing to accept there were no remaining paths to challenge the election results in Georgia. As Washington Post columnist Philip Bump writes, “A candidate simply hoping to ensure that all avenues were closed — even after months of scrutiny and multiple recounts — would receive information that those avenues had already been demonstrably closed with resignation and acceptance. That was not the way Trump received Raffensperger’s pushback.” [The Washington Post, 8/25/23]

While initially critical of Trump’s call to Raffensperger, Turley has been defending it

On January 3, 2021, Turley called Trump’s request for Raffensperger to “find” him votes, an “opportunistic move to secure the 16 electoral votes.” He wrote, “Telling Raffensperger to ‘find’ the votes on the Saturday before the certification is breathtaking. … I am mystified by the request as I am the logic. Such an opportunistic move to secure the 16 electoral votes would not work to change the outcome.” [Twitter/X, 1/3/21]
Over two years after critiquing the call, Turley claimed Trump’s call to Raffensperger, which initially sparked Willis’ investigation, was “widely misrepresented.” He stated that the call “has been taken as an invitation for fraud. There is, of course, a more obvious explanation and that is the Georgia officials were saying that further state recounts might not be necessary. And it would be natural for Trump to say look, you only need to find 11,000 [votes] to turn the outcome of this election. So I don't need that many votes. Thus, a state recount is justified.” [Fox News, Hannity, 8/14/23]
Turley argued that when Trump asked Raffensperger to “find” votes he was actually asking for a recount. He stated, “It makes perfect sense when you are challenging an election to say I only need around 11,000 votes. So if you do a statewide review, that's not a lot in a state like Georgia. That's not criminal. That's making a case for a recount” [Fox News, Hannity, 8/23/23]

Turley has been criticized for his legal commentary for years

The Nation’s justice correspondent Elie Mystal described Turley as “essentially the poster child for Trump apologists with legal credentials.” Mystal also wrote that Turley is “best known for going on TV and arguing that Trump cannot be held accountable for whatever crimes were most recently revealed” and that “his role is defending or sanitizing the wildly illegal or unprecedented behavior of Trumpworld.” [Balls and Strikes, 9/20/22]
Stanford Law professor Robert Weisberg described Turley as someone who “gleefully reports court decisions that go against Biden or other Democrats—and almost never or barely mentions any that the GOP loses.” In a piece titled “What Happened to Jonathan Turley, Really?” Weisberg wrote that with Turley, “we see Republican sycophancy rendered in a sober scholarly tone with pearl-clutching sanctimonious nostalgia for some pre-political era of American law.” also claimed Turley was “the anti-left Paul Revere.” [Slate, 11/18/22]
University of North Carolina Law professor Carissa Byrne said Turley is not only “hypocritical” but has also made a “serious breach of academic ethics and professionalism.” [Twitter/X, 1/18/21, 1/18/21]

Reprinted with permission from Media Matters.

Fox News Attacks Biden For Implementing Fox’s Own Vaccine Policy

Reprinted with permission from Media Matters

Fox News is turning the White House's upcoming push for COVID-19 vaccinations among the federal workforce into just another front in its right-wing culture war and campaign to undermine public health — even though Biden's upcoming policy will be seemingly identical to Fox's practices in its own offices.

To be exact, federal workers would reportedly be given the choice of either showing proof of vaccination or instead submitting to regular testing. This policy will in fact be very similar to what is already going on at Fox News' own offices, under a program called the "Fox Clear Pass" in which employees who provide their vaccine information are allowed to bypass daily health screenings. But Fox hosts have railed against the possibility of vaccine passports as "segregation," "medical Jim Crow," and "East German-style 'show me your papers.'"

And in Fox's telling, the upcoming policy is an insult to regular people across America — who are now being dubbed "unvaccinated Americans" — and an effort to dominate them. (Just to be clear, over 60 percent of the adult U.S. population has been fully vaccinated by now.)

Fox's Opinion Hosts Attack Vaccine Policy For "Dividing Americans"

On Tuesday night, Fox prime-time host Tucker Carlson declared that the Biden administration "has decided to use this virus to cement its control of the country."

"Democrats rode COVID to victory last November through fear and blame and brand new methods of voting," Carlson said. "And they plan to keep power through next year's midterm in the very same way, by dividing Americans against one another, vaccinated versus unvaccinated."

Carlson further compared required vaccinations for federal employees to a host of medical atrocities: "Government should never require people to submit to any medical procedure, whether that procedure is sterilization or frontal lobotomies or COVID vaccinations." He then denounced "professional Republicans" for not opposing the vaccination requirements, saying they're trying to prove "they're not anything like those morons in rural America who vote for them."

On Wednesday morning's edition of Fox & Friends, co-hosts Brian Kilmeade and Rachel Campos-Duffy highlighted what they called Biden's "insulting message to unvaccinated Americans" (when he bluntly stated on Tuesday: "If you're not vaccinated, you're not nearly as smart as I thought you were"), as if such a category represented an ethnic group or other community that should be treated more respectfully.

Meanwhile, co-host Steve Doocy tied the increased push for masking and vaccination to the midterm elections — tying the Democrats' fortunes to the effort to beat the virus — thus almost seeming to acknowledge the campaign of right-wing sabotage of public health for partisan reasons.

STEVE DOOCY (CO-HOST): All right, so what you've got going on is — and we've been talking about this — the president's polling numbers regarding COVID are actually inching down. And the whole idea for the midterms was, the Democrats were going to run on, "Hey, listen, look, we got COVID completely under control." Brian, you accurately portrayed the fact that 99 percent of the people who are getting sick and winding up in the hospital are the unvaccinated.

So essentially, the White House realizes that it — COVID is running around the country right now with the unvaccinated, but that still makes them look bad. They're trying to get people vaccinated, so what are they doing? They are making everybody wear a mask — even though the people who, for the most part, got the shot don't need it — simply to control the people who have not been vaccinated.

Fox's 'News Side' Complains Biden Is 'Scolding' Vaccine-Hesitant

In a rare exception to the general tone of coverage, Fox News host Trey Gowdy explained the basic legalities involved during a segment on America's Newsroom. "You don't have a constitutional right to work for the federal government," he said, and the federal government can act as an employer, while state governments might even have the power to simply mandate the vaccines for their own citizens.

But later in the morning, news anchor Harris Faulkner accused Democrats of "talking down to vaccine-hesitant Americans," employing much of the same culture-war language that Carlson had used the night before.

DR. MARC SIEGEL (FOX NEWS MEDICAL CORRESPONDENT): Listen, Harris. We've said this before, and I want to say it a little differently. You need to ask somebody why they're not being vaccinated — not bludgeon them, not bully them, not shame them. You say, "What's your issue?" Well, maybe they had a side effect to a previous vaccine. … Maybe it's a religious issue. And by the way, I would counter that religious issue by talking the way you and I talk — privately and on the air — by saying, you know, religious, Judeo-Christian heritage, we want to protect our families. I's family. So talk about it in terms of family, but not mandates, not bludgeoning, not shaming, not putting people down. People are not stupid. People can be talked to.

FAULKNER: You know, I wonder if they don't just think that about us sometimes. Just as Americans in general. We're good people. You know, this is the same group that would have you believe that we're systemically racist here, too. I don't want to muddle it. I'm just saying, what do they really think of us? Because you can talk to us. I can tell you why I got it. Somebody else might tell you why they are worried about getting it, but it's an open conversation.

And later in the afternoon, news anchor John Roberts complained that "there seems to be a certain scolding characteristic coming from political leaders about vaccination," including from Biden and Democratic California Gov. Gavin Newsom. Instead, Roberts proffered, "I think you give them the information, and you say, 'Look, it's in your interest to do it, and it's in everybody else's interest. Why don't you come along to the party?'" On the other hand, maybe Roberts ought to try watching the rest of his network, to see how much outright resistance to vaccination has actually been encouraged, now making a bit of tough love actually necessary.

For example, later that afternoon Fox News contributor and law professor Jonathan Turley said the Biden administration had moved to a "coerced consent" model of vaccination, with private companies becoming a "shadow state" to implement government policy on vaccines — without noting the very company he was appearing on had already implemented the same policy.

And that night, Fox host Sean Hannity — who last week made clear that he was not encouraging vaccination following a right-wing backlash over a widely misinterpreted video clip, asked in a concerned tone: "And is the next thing a vaccine passport, which eliminates medical privacy and doctor-patient confidentiality?"

So while John Roberts really ought to watch the rest of his own network, maybe Sean Hannity needs to talk to the company's human resources department.

Research contributions from Jane Lee and Rebecca Martin

Abuse Of Power Isn’t A Crime — But It Can Be An Impeachable Offense

“Was that wrong?” George Costanza asks in a 1991 episode of “Seinfeld” after his boss confronts him with a report that “you and the cleaning woman have engaged in sexual intercourse on the desk in your office.” George says he has to “plead ignorance,” because no one “said anything to me at all when I first started here” suggesting “that sort of thing was frowned upon.”

Donald Trump’s legal team is trying out a version of the Costanza defense, arguing that the articles of impeachment against him are constitutionally deficient because they do not allege any violations of the law. That claim is so dubious that even Trump’s lawyers don’t believe it.

The president is accused of abusing his power for personal gain by pressuring the Ukrainian government to announce an investigation of a political rival. The scheme allegedly included temporarily blocking $391 million in congressionally approved military aid.

The Government Accountability Office recently concluded that Trump’s hold on that money violated the Impoundment Control Act. But the articles of impeachment do not mention that law or any other statute that Trump is accused of violating.

Is that a fatal flaw, as Trump lawyer Jay Sekulow and White House Counsel Pat Cipollone insist? Not according to George Washington University law professor Jonathan Turley, the sole Republican witness at the House Judiciary Committee’s Dec. 4 impeachment hearing.

Turley, who harshly criticized the impeachment process as rushed and incomplete, warned that abuse of power allegations can be dangerously amorphous when detached from the elements required to prove a crime. He nevertheless conceded that “the use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense.”

Turley emphasized that “high crimes and misdemeanors” are not limited to statutory violations. The phrase “treason, bribery, or other high crimes and misdemeanors,” he observed, “reflects an obvious intent to convey that the impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts).”

Turley noted that James Madison, although he opposed including “maladministration” as grounds for impeachment, said the process was meant to address “the incapacity, negligence or perfidy of the chief Magistrate.” Alexander Hamilton likewise said impeachment was aimed at “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Harvard law professor Alan Dershowitz, a member of Trump’s legal team, now takes what he concedes is the minority position, arguing that an impeachable offense has to be a crime. But he was singing a different tune during Bill Clinton’s impeachment in 1998.

“It certainly doesn’t have to be a crime,” Dershowitz said on CNN. “If you have somebody who completely corrupts the office of president, and who abuses trust, and who poses great danger to our liberty, you don’t need a technical crime.”

Another Trump lawyer, Rudy Giuliani, claims the articles of impeachment are unconstitutional because “abuse of power and obstruction of Congress are not crimes of any kind.” But during a 2018 discussion of Independent Counsel Robert Mueller’s investigation, Giuliani declared that a preemptive presidential self-pardon, while legal, “would just be unthinkable” and “would lead to probably an immediate impeachment.”

In other words, a self-pardon would not be a crime, but it would still be an impeachable offense. Similarly, a president who used his authority over the Justice Department to quash investigations of his friends and launch investigations of his enemies would be violating the public trust in a way that could justify impeachment, even if everything he did was technically legal.

Without a statutory basis, Sekulow and Cipollone argue, abuse-of-power charges effectively allow legislators to impeach the president because of policy disputes or partisan animus. But there is also a danger in letting a president off the hook because no one ever explicitly said his particular brand of misconduct was frowned upon.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

Shop our Store

Headlines

Editor's Blog

Corona Virus