Amicus With Dahlia Lithwick | "Impeachment Primer"

Date: October 12, 2019
Host: Dahlia Lithwick, Slate
Guests: Prof. Laurence Tribe (Harvard Law), Prof. Pam Karlan (Stanford Law), brief clip from David Cole (ACLU)

Overview of Episode

This episode of Amicus is a comprehensive “primer” on the legal, procedural, and constitutional stakes of the Trump impeachment inquiry in fall 2019. Dahlia Lithwick interviews renowned constitutional scholar Laurence Tribe to break down the unprecedented arguments issued by the Trump administration against the congressional impeachment process, the powers of Congress, and the potential roles for the courts and the Supreme Court. The second half covers the landmark Supreme Court LGBT discrimination cases from earlier that week with litigator Pam Karlan, focusing on Title VII’s protection for gay and transgender employees.

Segment 1: Primer on Impeachment and Constitutional Crisis

Guest: Prof. Laurence Tribe
Timestamps: 00:40–33:07

Key Discussion Points

The White House Position and Precedent (04:00–06:25)

• No legal basis for the White House’s refusal to cooperate with impeachment.
  • Tribe: "The idea that the president...can dictate its terms would be very much like a defendant in a criminal case telling the prosecution, 'here's how you have to run things and here are the rules, otherwise I won't show up.'" (04:23)
• Watergate comparison: Even Nixon did not attempt a total stonewall—he negotiated and engaged.
  • “Never before in our history has the target of an impeachment inquiry said, ‘no thanks, I’m simply not going to participate because I don’t like the way you’re running it.’” (05:08, Tribe)

No Required House Vote for Inquiry (05:47–08:43)

• The Constitution does not require the full House to vote before opening an inquiry.
  • House rules have changed: individual committee chairs can now compel testimony and issue subpoenas without full chamber authorization.
• Past impeachments (especially of judges) proceeded without such votes.

Doctrinal Questions – Courts, Impeachment, and “Formality” (08:43–12:01)

• Courts may ask whether there’s been a formal impeachment inquiry vote, but legal force is lacking.
  • Judge Howell expressed “incredulity” at administration arguments that everything must wait for a full House vote (09:37).
• The administration is advancing unprecedentedly broad immunity claims—not only that the President can’t be indicted, but that he and his allies can’t be investigated or even compelled as witnesses (10:22–12:01).

Executive Privilege Overreach (13:00–14:13)

• The White House is stretching executive privilege “into a sweeping umbrella of complete immunity from the law… That’s just a crazy position.” (13:00, Tribe)
• Even a conservative Supreme Court “will cut it back dramatically.”

Legal Shell Game/Moving Goalpost (14:13–15:44)

• Tribe: “It’s very much like the magic trick… [they say] you can’t do this because of that… adds up to the proposition that ‘I am the emperor, I am the state.’ Just as President Trump apparently does think of himself that way…” (14:47)

Congressional Teeth & 'Inherent Contempt' (15:44–19:55)

• Inherent contempt (jailing/fines) is legal but impractical: “It would be a terrible distraction.” (16:35)
• Tribe prefers expedited litigation in the courts while House proceeds with articles of impeachment based on existing evidence, especially Ukraine.
  • “There’s no reason why these impeachments can’t proceed while Congress still digs around… He can be impeached in the meantime. And there’s no rule that says you can only impeach a president once.” (17:35)
• Senate’s willingness to back Trump is cracking, partly due to foreign policy (Kurds).

Should the House “Wait” for Everything? (19:55–22:26)

• Lithwick and Tribe agree: Congress need not wait for exhaustive evidence.
  • “It's like saying, not just 'I could shoot someone on Fifth Avenue and get away with it.' Every time you go after me for shooting someone on Fifth Avenue, I'll shoot somebody else and you'll never, never catch up… The way to put a stop to that is to impeach him now, not wait.” (20:43, Tribe)

Role of the Courts and Supreme Court (22:26–26:35)

• The Supreme Court won’t rule on impeachment’s merits, per Nixon v. United States.
• Ancillary cases—tax returns, emoluments, subpoenas—might go to SCOTUS and could move quickly, as with the Nixon tapes.
• Some evidence and testimony may come voluntarily, even from administration officials not under Trump’s tight control.

Roberts’ Role as Chief Justice (26:35–29:36)

• Lithwick asks if it’s too much for Chief Justice Roberts to oversee the Supreme Court, impeachment trial, and key Trump litigation at once.
  • Tribe: the Senate impeachment role is “largely ceremonial”; the real institutional pressure will be for SCOTUS “to reassert its independence…[likely] even the most conservative judges… will be unanimous in rejecting [the President’s] most extravagant claims.” (28:43)

Existential Stakes & Public Responsibility (29:36–32:40)

• Tribe calls for reflection on first principles—“preserving a system where there is no one person who is sort of the boss of all of us, where we can govern ourselves… if we want to preserve a republic and the rule of law as more than just a slogan…” (30:21)
• The Founders worried about a demagogue subverting democracy—impeachment is the “remedy for a national cancer.”

Notable Quotes

• On precedent and legal authority:

  “There’s no basis at all for the position taken by the White House.”
  —Laurence Tribe (04:23)

• On executive privilege ‘run amok’:

  “[President Trump] is transforming a limited idea of shielding certain communications… into some sweeping umbrella of complete immunity from the law. And that’s just a crazy position.”
  —Tribe (13:00)

• On Congress’ path forward:

  “Impeach the guy and keep pursuing him for all these other things… You can impeach more than once.”
  —Tribe (20:43)

Segment 2: Supreme Court LGBT Employment Discrimination Case

Guest: Prof. Pam Karlan (Stanford Law)
Clip: David Cole (ACLU)
Timestamps: 33:07–end

Key Discussion Points

Case Overview: Title VII and LGBT Workers (34:00–36:01)

• Pam Karlan represented Gerald Bostock (gay man, child welfare worker fired after joining a gay softball league) and Donald Zarda (gay skydiving instructor fired after outing himself to ease a client's concern).
• Both sued under Title VII, which bars discrimination “because of sex.”

The Textualist Argument (36:01–41:47)

• Lithwick summarizes the government’s argument: discrimination is only if you treat men in same-sex relationships the same as women in same-sex ones.
• Karlan: Discriminating against a man for being attracted to men, but not against women, is “sex discrimination, pure and simple.”
  • Quote: “If you take two people who do exactly the same thing, one of them's a man, one of them's a woman, and you fire one of them and not the other, that's sex discrimination.” (61:50)

Gender Stereotyping and The Stereotype Argument (38:39–41:47)

• Karlan invoked precedent: If you ban sex stereotyping (Price Waterhouse), you can’t distinguish between banning a man for being “too effeminate” and firing him for being gay.

Congressional Intent vs. Statutory Language (41:47–44:13)

• Lithwick notes Ginsburg’s “mad men” reference: in 1964, gay rights weren’t considered, but Congress wrote “because of sex”.
• Karlan: Court must focus on words, not legislative expectations—citing Justice Scalia in Oncale.

“Super-legislature” and Exceptions (44:13–45:39)

• Justices worried about not leaving the decision to Congress.
• Karlan: They’re just asking the Court to apply the statute; Congress itself carved out exceptions for bona fide occupational qualification (BFOQ), not for sexual orientation.

The ‘Bathroom’ Distraction & Harms (46:05–51:49)

• Lithwick and Karlan note the Court’s obsession with bathroom hypotheticals, which are not central to sexual orientation employment discrimination.
• Karlan: "We've had, you can't discriminate on the basis of sex ... and yet since 1964, no one has successfully challenged the idea of single sex bathrooms...nothing about our case changes whether or not you can have single sex bathrooms." (48:39)
• David Cole (ACLU) points out transgender lawyers use the Supreme Court bathrooms—there’s been no disruptive “upheaval.” (50:14)

Religious Objections (54:29–56:09)

• Roberts and the Solicitor General worry about impacts on religious freedom, even though religion isn't at issue in this case.
• Karlan: “It’s a very small tail, religious objectors, wagging a very large dog here."

“Pat” and “Dessert Topping” SNL References (59:23–60:45)

• With Justice Alito positing, “What if an employer doesn’t know someone’s sex?”, Karlan refers to SNL’s “Pat”—the ambiguity is rare and beside the point.
• Jokes about another SNL skit: “It can be a dessert topping and a floor wax” (i.e., two things at once: sex discrimination and sexual orientation discrimination).

Gorsuch and Textualism (61:06–62:05)

• Gorsuch seemed persuadable—asked textualist questions, recognized real harms.
• Karlan: "…the text is so very clear here…" (61:50)

Societal Change and the Court (62:36–64:32)

• Karlan: In 1986 (Bowers v. Hardwick), a Justice claimed never to have met a homosexual; now, with gay and trans attorneys before them, the Court cannot ignore these realities.

Notable Quotes

• On Title VII’s plain meaning:

  "When you discriminate against someone for being gay, you are discriminating against him because he is a man who is doing something that would be perfectly acceptable if he were a woman, which is being attracted to other men."
  —Pam Karlan (37:12)

• On framing and social change:

  "Not everybody gets married, but pretty much everyone who's an adult works."
  —Pam Karlan (64:00)

• On religious objections:

  “It's a very small tail, religious objectors, wagging a very large dog here, which is most of the employers and most of the employees..."
  —Pam Karlan (56:09)

Key Timestamps for Major Segments

• Impeachment Primer Introduction: 00:40–04:00

• Tribe on legal foundation of impeachment inquiry: 04:23–06:25

• Full House vote, House rules, and precedent: 06:25–08:43

• Grand jury material, court postures: 08:43–12:01

• Executive privilege and shell game: 13:00–15:44

• Congress’ tools: inherent contempt vs. courts: 15:44–19:55

• Should the House wait? / Multiple impeachments? 19:55–22:26

• Supreme Court’s jurisdiction/Roberts’ role: 22:26–29:36

• Tribe on existential stakes: 29:36–32:40

• Karlan on Title VII/Early case details: 34:00–36:01

• Sex discrimination logic (textual argument): 36:01–41:47

• Gender stereotyping/SNL “Pat”: 59:23–60:45

• Gorsuch's positioning/textualism: 61:06–62:05

Tone and Style

• The episode balances seriousness regarding the stakes for democracy and legal process with sharp, clear explanations and occasionally wry humor (e.g., SNL references, “banana soup republic,” and Gilda Radner’s floor wax sketch).
• Dahlia Lithwick’s tone is urgent, conversational, and at times exasperated, mirroring the anxiety and confusion in the news cycle. Guests respond with clarity, expertise, and kind reassurance.