Impeachment's Aftermath

Summary

Amicus With Dahlia Lithwick | "Impeachment’s Aftermath"

Date: February 1, 2020
Host: Dahlia Lithwick
Guest: Professor Barbara McQuaid, University of Michigan Law, former U.S. Attorney

---

Episode Overview

This episode of Amicus dives deep into the aftermath and implications of President Trump’s first impeachment trial, recorded as the Senate neared acquittal. Dahlia Lithwick and Professor Barbara McQuaid dissect the legal arguments offered by the President’s defense, explore what the trial’s process portends for American constitutional norms, and reflect on the impact upon the rule of law and future presidential conduct. The episode stands as both a real-time analysis and a cautionary exploration of precedent, accountability, and the role of law in politics.

---

Key Discussion Points & Insights

1. The Playbook for Future Presidents

• Main Insight: The Senate’s acquittal, particularly following Trump's refusal to cooperate with Congressional oversight, sets a new norm: future presidents may now feel emboldened to stonewall co-equal branches of government without consequence.
  • Quote: “I think you've just seen the playbook for future presidents. Don't ever give them anything because you saw what happened to Nixon. He was forced to resign. Trump... refused to recognize a co equal branch of government and he prevailed.” —Barbara McQuaid [00:05]
  • This new "playbook" replaces historical accountability (Nixon’s resignation) with strategic stonewalling.

2. Defining Impeachable Conduct: The Dershowitz Defense

• The President’s defense (espoused by Alan Dershowitz) argued:
  • Unless there is a violation of criminal statute, the conduct is not impeachable.
  • If the President takes an action believing his own re-election is in the “public interest,” then self-serving actions can't be impeachable.
• McQuaid’s Rebuttal:
  • Historically and legally, impeachable offenses include abuses of power, even without technical crimes.
  • Extending Dershowitz’s logic leads to absurd and dangerous scenarios—presidents demanding favors purely for personal political benefit.
  • Quote: “That is absolute, utter nonsense... This is an abuse of power. This is a president using his office and... holding up [aid] or releasing it in exchange for a personal political favor.” —Barbara McQuaid [05:14]
• Memorable Moment: McQuaid analogizes to a hypothetical president conditioning aid to Israel on a smear against a political rival, exposing the flaw in the defense's logic.

3. The “Mixed Motive” Argument

• Patrick Philbin, for Trump, claimed mixed motives (even 1% legitimate intent) should bar impeachment—since intent could never be clearly parsed by fact-finders.
  • Quote: “If it’s a legitimate inquiry in the national interest, if that possibility is there, that's the end of it.” —Patrick Philbin [08:21]
• Rebuttal:
  • McQuaid points out that in bribery and corruption cases, juries are routinely called to determine intent amid mixed motives.
  • “Jurors are instructed as follows. It’s impossible to read the mind of another person... you have a job of deciding what was the defendant’s intent... we do it all the time.” —Barbara McQuaid [09:58]
  • The Senate’s claimed inability to probe intent is a smokescreen; the real issue is a lack of political will to act.

4. Precedent, Process, & the Failure of Fact-Finding

• Impeachment Is Not a True Trial? Lithwick and McQuaid discuss how the lack of witnesses and evidence collection turns impeachment from a genuine fact-finding process into a political show.
• The Senate's decision not to call witnesses (e.g., John Bolton) subverted normal legal standards.
  • “If somewhere between the grand jury process and the actual criminal trial new evidence surfaces... you would never say, 'oh, no, no, can't hear that.'” —Dahlia Lithwick [15:08]
  • McQuaid: The impeachment stage is like indictment—a preliminary phase, and due process and confrontation should occur at "trial." That process was short-circuited here.

5. New Revelations—Do They Matter?

• At the time of recording, fresh excerpts from John Bolton's book emerged, adding direct evidence to Trump’s intent.
• McQuaid’s Take: “The truth has a tendency to come out over time... Any senator who votes to acquit but without asking to hear all of the evidence that's available risks being seen as an enabler and risks his or her own reelection or legacy in history.” [17:36]
• But in the current climate, McQuaid doubts these revelations will shift decisions—political expediency has overtaken fact-finding.

6. The Role and Ethics of White House Counsel

• Discussion about Pat Cipollone (White House Counsel) being both a lawyer and a fact witness; McQuaid considers this ethically dubious and potentially grounds for state bar investigation.
  • “Generally it is considered unethical for a lawyer to handle a case as a lawyer where he is also a witness to that case. It’s also just a bad idea.” —Barbara McQuaid [19:59]

7. Lasting Norms Vs. Legal Precedent

• Lithwick queries whether any of the arguments or tactics here become meaningful precedent.
• McQuaid: While not binding as legal precedent, the Senate’s actions harden “norms”—or, more frighteningly, the absence of them. The “stonewall” defense may be validated as an effective strategy for future presidents.
  • “If the Senate ratifies this behavior, then we’re just going to see more of it in the future.” —Barbara McQuaid [24:26]

8. The Erosion of Constitutional Balances

• The episode highlights how Trump's refusal to cooperate, combined with the Senate’s failure to assert its oversight, shatters the delicate “subtle dance of accommodations” between Congress and the President.
  • “[Trump's stance is] not only am I not going to give it to you voluntarily, but you don’t have the courts as a resort either... our tripartite form of government is set up... so no one branch can run amok. But President Trump, by not being held accountable... has prevailed. His rock has crushed not only scissors, but also crushed paper.” —Barbara McQuaid [27:21]
• The courts’ slowness—exemplified by unresolved subpoenas—allowed the administration to “run out the clock.”
• Calls for expedited judicial review in such urgent, high-stakes situations.
  • “In extraordinary situations, it can be done, and I think it should be done in these kinds of cases.” —Barbara McQuaid [31:28]

9. Executive Privilege: Academic or Still Relevant?

• Even if the trial is over, McQuaid believes the House could still pursue testimony from Bolton and others, potentially spurring litigation on executive privilege and further clarifying (or challenging) its scope.
  • “It could be yet another impeachment... But the House has the authority to conduct hearings on any matter for which it has the power to legislate or impeach...” —Barbara McQuaid [32:09]

10. Chief Justice Roberts and the “Mockery” of a Trial

• Both speakers reflect on Chief Justice Roberts's minimal role in the process, comparing it to trial judges who would not tolerate misrepresentations or a lack of witnesses.
  • “It makes him appear complicit in this unfair trial proceeding... his reputation and the reputation of the court suffered a little bit for his involvement in this trial, which has been a little bit of a mockery of justice.” —Barbara McQuaid [34:34]
• Notable moment: Elizabeth Warren’s pointed question to Roberts about whether the trial damages trust in the Supreme Court [37:14].

11. Damage to Judicial and Public Legitimacy

• Lithwick: “Was this whole trial ultimately really devastating for those of us who believe in trials, who believe in judges... is this, in the end... justice with a capital J took a hit with this trial?” [38:53]
• McQuaid: “I do.... impeachment is a political process... but try suggests trial. And I think... the Senate has disregarded the value of witnesses and evidence... justice has taken a hit here. And... public trust has taken a big hit here as well.” [38:53]

12. The Path Forward—Voter Accountability

• With the trial’s end, McQuaid emphasizes the coming election as the final check: “At the end of the day, it’s the voters who have the most power of all. And perhaps it will spark some voter turnout and inspire people to go to the polls.” —Barbara McQuaid [41:12]

---

Notable Quotes & Memorable Moments

• On the new standard for future presidents:
  “Trump... refused to recognize a co equal branch of government and he prevailed. That's the way you win.” —Barbara McQuaid [00:05]
• On Dershowitz’s defense:
  “That is absolute, utter nonsense.... it's an abuse of power.” —Barbara McQuaid [05:14]
• On the inability to read minds:
  “Jurors are asked to do that every day in courtrooms all across this country...” —Barbara McQuaid [09:58]
• On Senate’s decision not to call witnesses:
  “We don't have a neutral finder of fact here.” —Barbara McQuaid [13:03]
• On the damage to constitutional balance:
  “President Trump, by not being held accountable by the Senate here, has prevailed. His rock has crushed not only scissors, but also crushed paper.” —Barbara McQuaid [27:21]
• On the “trial” as a mockery:
  “It makes him appear complicit in this unfair trial proceeding.... which has been, I think, a little bit of a mockery of justice.” —Barbara McQuaid [34:34]
• On the lasting impact:
  “Justice has taken a hit here. And... public trust has taken a big hit here as well.” —Barbara McQuaid [38:53]

---

Timestamps for Key Segments

• Opening—Summary of Senate’s acquittal and consequences: [00:05] - [01:00]
• Discussion of Dershowitz's defense & analogy to self-serving presidential acts: [03:40] - [07:37]
• Patrick Philbin and “mixed motives” defense: [08:21] - [12:24]
• Failures of the trial process and comparison to normal criminal procedure: [12:24] - [16:31]
• The impact of new evidence (Bolton) and why it may not matter: [16:31] - [19:09]
• Ethical issues around Pat Cipollone as counsel and witness: [19:09] - [21:18]
• Precedent, norms, and the end of “the dance of accommodations” between branches: [24:26] - [27:21]
• Discussing executive privilege and possible next moves for the House: [32:09] - [33:39]
• Chief Justice Roberts’s role and Elizabeth Warren’s question: [33:39] - [38:53]
• The blow to public trust and the centrality of the upcoming election: [38:53] - [42:03]
• Closing reflections and the future: [41:12] - [42:03]

---

Takeaways

• The acquittal sets a dangerous new norm: stonewalling Congress works if the Senate lacks the will to enforce accountability.
• Legal standards and trial processes were distorted or bypassed, with rationales that contradict normal criminal law practices.
• The impeachment process, as conducted, may have lasting negative effects on the public trust in institutions—especially the courts, the Senate as a check, and ultimately, democratic accountability.
• Despite it all, the speakers note: the next and perhaps only remedy will be at the ballot box in November.

---

Summary prepared for listeners who seek a nuanced understanding of the impeachment's legal and procedural fallout, its immediate lessons, and its long shadow over American democracy.

Transcript

[Barbara McQuaid]

I think you've just seen the playbook for future presidents. Don't ever give them anything because you saw what happened to Nixon. He was forced to resign. Trump, look at the way he played it. He just refused. He refused to recognize a co equal branch of government and he prevailed. That's the way you win.

[Dahlia Lithwick]

Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law, the Constitution, the rule of law, impeachment, and I guess maybe now the wheel's finally coming off. Constitutional democracy as we know it. I'm Dahlia Lithwick. I cover all those things, except perhaps the last for Slate. And where you are right now, it's probably possibly Saturday morning. But where I am right now, it's actually Friday afternoon. That means that we are in the middle, still in my head, of an historic impeachment trial in the Senate, which may or may not actually be over by the time this show turns up in your feeds. Let's just briefly adapt the Chinese blessing slash curse. May we all live in fractionally less interesting times. So, okay, tomorrow Sunday, we're going to be bringing you the promised second episode of our huge five part Election Meltdown series. That's the one we're doing in tandem with Professor Rick Hassan and his Election Meltdown book. Now, we're bringing you Election Meltdown in no small part because we believe, associating ourselves with the remarks of Senator Lamar Alexander on Thursday, that whatever happens at this point in the Senate is just for show. Real change is going to have to happen in November at the ballot box. Now, if you've been listening to Election Meltdown, you probably know that free and fair elections aren't quite, quite the magic bullet that Senator Alexander would have you believe. Nevertheless, let's all agree it's now pretty clear that the 2020 elections may be the sole mechanism capable of checking and balancing an administration that this week openly argued that if the president does it just to win elections, it's not impeachable. So here, an extra amicus just for you, attempting to put this truly epic two weeks into some kind of perspective and context, with the explic caveat that nobody knows what is going to happen by 5am Saturday. And we're super, super sorry that we're not as good at predicting the future as we are at analyzing the past. My guest today is Professor Barbara McQuaid. She teaches criminal law at the University of Michigan. Barbara served as the U.S. attorney for the Eastern District of Michigan and also as Vice Chair of the Attorney General's advisory committee and co chaired its Terrorism and National security subcommittee. As U.S. attorney, Barb oversaw cases involving public corruption, terrorism, corporate fraud, theft of trade secrets, civil rights, health care fraud, among other things. She also serves as a legal analyst for NBC News and msnbc, and her writing appears pretty much everywhere you need to be. Her Twitter feed has been even more indispensable this last few weeks than usual. I've wanted to have Barb on the show for forever. Why not pick the week in which Senator Alexander declaimed that for purposes of this impeachment trial, quote, there is no need for more evidence to prove something that has already been proven. So, Barb McQuaid, welcome finally to Amicus.

[Barbara McQuaid]

Delighted to be with you.

[Dahlia Lithwick]

And I confess, I actually don't even know where to begin. But I wonder if we could start just with the theory of the case, because I think we have, in two short weeks, slid quickly from he didn't do it, no quid pro quo, to yeah, he did it, we all know it. But so. And I hesitate to play Alan Dershowitz saying the things that now Alan Dershowitz says Alan Dershowitz did not say. But I think this was the moment in which the claim that if the President did it, it isn't illegal because he just really, really wanted to get reelected became his defense. So let's play it for a minute.

[Rick Hassan]

Every public official that I know believes that his election is in the public interest. And mostly you're right. Your election is in the public interest. And if a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

[Dahlia Lithwick]

Okay, so, Barb, I guess when you heard that, your head blew off. And we should also stipulate that Dershowitz now says he didn't mean that thing that he said with his face. And I think that Patrick Philbin, one of the President's other lawyers, says that that's not the theory of the case. But can you. Let's start from the moment that you heard that. What is it exactly that Dershowitz is saying there?

[Barbara McQuaid]

Well, I think one of the things, you know, they began with the argument that to be an impeachable fence, it must be a violation of a criminal statute, which goes against all scholarship, all history, including the impeachment articles against President Nixon and President C.L. clinton. It goes against the history of impeachment of judges who've been impeached for intoxication on the bench, for example, not crimes, but certainly demonstrating that you're unfit to serve in the office. But what Alan Dershowitz did was to take that one step further and say, not only must it be a criminal offense, but if the president does something in hopes of seeking his reelection as the quid pro quo in some sort of, you know, this for that, that can't be enough. Because if he truly believes that he is, his election is in the best interest of the public, then he is acting to serve as president. That is absolute, utter nonsense. And let me share an analogy, and I. It's not an original one. I read it somewhere and I can't remember, but there are a number of them flying around. And this to me was the most apt. You know, take, you know, so what law professors do, like Alan Dershowitz, is take a claim and then try to extend the logic to some other scenario to demonstrate how absurd it is. And the best one I saw was this. Imagine if a president said to Israel, hey, Israel, we are happy to give you military aid, but we're not going to give it to you unless you do me a favor. And here's the favor. I want you to accuse my political opponent of anti Semitism. I want you to do a full court press, social media, public statements. I want the president to say it out loud. And if you do that, then I'm going to share this aid with you. I think that example helps us demonstrate what was actually going on in Ukraine. It was really the same thing. I want you to make it a public announcement that you're investigating my opponent. And in fact, you don't even need to do the investigation, because all I really care about is that public announcement. I think that that analogy explains why this just cannot be. This is an abuse of power. This is a president using his office and using the power, that leverage of that military aid and holding it up or releasing it in exchange for a personal political favor. And so it can't stand the argument that Alan Dershowitz, even as clarified, I think is utter nonsense. And as Adam Schiff said the other night, if truth doesn't matter and if that's what it's come to, then all is lost.

[Dahlia Lithwick]

And I think sort of adjacent to the argument that, oh, it can't possibly be a quid pro quo or an abuse of power if the president legitimately believed that it was in the national interest for him to be elected. But right next to that, the sidecar argument, and this is the one that I think Patrick Philbin completely associated himself with, was the argument that, well, once there's mixed motives. You know, it's really not our place to determine whether the intent was there. Let's play that for a minute. Because it's slightly different from the claim that if the president wants to get elected, it can't be illegal.

[Patrick Philbin]

It's totally unacceptable to start getting into the field of saying, well, we're going to impeach the president and remove him from office by putting him on the psychiatrist's couch and trying to get inside his head to find out, was it 48% this motive and 52 the other, or did he have some other rationale? No. If it's a legitimate inquiry in the national interest, that's the end of it. And you can't be saying that we're going to impeach the president, remove him from office, decapitate the executive branch of the government, disrupt the functioning of the government of the country in an election year by trying to parse out subjective motives and which percentage of the motive was this good motive or some other motive, something like that. If it's a legitimate inquiry in the national interest, if that possibility is there, if the national interest is there, that's the end of it.

[Dahlia Lithwick]

And so, Barb, I guess my question is if Wei'm going to try to characterize this argument as generously as I can, but I think that what Philbin and Dershowitz are claiming there is that if 99% of the reason for withholding the aid from Ukraine in Donald Trump's mind, was corrupt and to promote his own electoral fortunes, but 1% was for a good motive, which is that he wanted to really fight corruption in Ukraine, then ours is not to probe that mixed motive. We just have to default into acquittal. That's the argument, right?

[Barbara McQuaid]

It is. And one of the things that I think makes lawyers so enraged about this is it misstates the law and practice. And a lawyer like Patrick Philbin knows better. So the way it misstates the law is in a bribery case, a jury would be instructed that mixed motive is sufficient to convict someone. You must find that they acted for corruptly. And so, for example, if you have, say, a city council member who is charged with voting in a particular way to approve a public contract, and he received a bribe for doing that, the contractor gave him $10,000 to vote in favor of awarding the trash hauling contract to this particular contractor, even if he says, you know, I still think he was the best contractor, he offers a pretty good service and at a pretty good rate. But, yeah, I also got $10,000 for my vote. That's still bribery because he acted corruptly. It doesn't matter if there was also some pure motive, if he did it for a sinister purpose, for the purpose of receiving this bribe, an improper purpose. And let's not forget what President Trump did here. It wasn't that. Well, providing military aid not only helps Ukraine, but it will help me get reelected because that looks good in the public interest. No doubt politicians do things all the time and in part because it will help them with particular constituencies. But what President Trump was doing was not some legitimate act to advance a national interest because it might help some particular constituency that he needed to get reelected. It was to do something that's completely illegal to smear Joe Biden, that is not to advance the interests of some particular electorate. So, okay, so that's the legal mistake that he is making or legal inaccurate legal argument he's making. The other is in practice. He says, how could we discern what's 48 of his reason or 99% of his reason? Jurors are asked to do that every day in courtrooms all across this country. Jurors are instructed as follows. It's impossible to read the mind of another person. However, you have a job of deciding what was the defendant's intent. And here's how you go about doing that. I instruct you to look at the totality of the circumstances, what the defendant did, what the defendant said, and all the other things that were surrounding these facts and to draw reasonable inferences and based on those facts, that is your job as jurors. And so we do it all the time. And to suggest that the Senate is incapable of doing that is inconsistent with that practice that occurs in America every day.

[Dahlia Lithwick]

And two quick follow ons, Barb. One is the notion thatI think I wrote about this a little bit on Thursday, but the notion that ours is not to psychologize the president, like who are we to probe mens rea? That's just astounding. All of white collar crime, all of. I mean, we assume that jurors, as you said, are actually really deft at probing mens rea and kind of over and above that. If you are asking your jurors to figure out mens rea, there's a really good way to do that, which is bring in John Bolton, who can talk about it. So this kind of fails both of those tests.

[Barbara McQuaid]

Yeah, absolutely. As you point out, mens rea is an element of every offense. It's a violation of due process to convict someone without a finding. Of mens rea, whether it's knowingly, willfully, corruptly, whatever the statute requires, a jury has to make a finding on that. And so that's why I find it not only unpersuasive, but disgusting that a lawyer of the caliber of Patrick Philbin is making this argument to Americans counting on the fact that most members of the public don't know that and will find his argument kind of persuasive. Yeah, I guess that's right. How can we possibly read his mind? It happens in courtrooms across the country every day. And to suggest otherwise is really undermining his duty. Now, we've heard Republicans say, I don't need any more facts. It was the responsibility of the House to gather these facts at the impeachment stage, and I have all we need. And how can they say they have a mountain of evidence when they're now asking for more evidence? Well, it's because we don't have a neutral finder of fact here. What we have is a fact finder who has said they are predisposed to find the president not removable on the basis of what they know. All right, well, if you don't have enough information, you have the opportunity to get more information to discern the President's intent. And this is not a fishing expedition. We know from John Bolton and reports about his book that he's got direct evidence about what the President's intent was and what he admitted to him. We also know that Mick Mulvaney is someone who has admitted that the President was acting as a quid pro quo. You know, he walked it back later. But we know from his statements at a press conference that he said that President Trump was using one thing to get another, and his excuse was, it happens all the time in foreign policy. Well, I agree that leverage happens all the time to extract a promise or performance of some conduct that is in the best interest of the country, not to extract a promise or conduct that is in the best interest of an individual candidate.

[Dahlia Lithwick]

Also, just as a matter of criminal law, you try these cases. I don't. But if somewhere between the grand jury process and the actual criminal trial, new evidence surfaces, material fact, witnesses come forward and say, hey, I actually have something to add to the record. You would never say, oh, no, no, can't hear that, because we already had a grand jury process. And that just. It both defies logic, but also seems to really profoundly defy justice. Right?

[Barbara McQuaid]

Absolutely. That is not typically the way it's done, typically to get an indictment at the grand jury stage. Where the standard is probable cause, not the higher guilt beyond a reasonable doubt necessary for trial. It's usually presented in a fairly bare bones manner. Just enough to convince the grand jurors that there is sufficient evidence here to go forward with a full trial. And that's where the due process right to confront one's accusers, right to call witnesses, right to cross examine, that's where that will occur. And so the impeachment or indictment stage really is considered just the charging stage. And everybody contemplates that at the trial. That's where we'll get the more fulsome presentation of witnesses for fact finders to make a decision about guilt or innocence or in this case removal or acquittal.

[Dahlia Lithwick]

So I want to talk as we're speaking just within the last half hour or so, the New York Times has dropped some new revelations. There's yet more evidence from John Bolton's book of even earlier conversations between the President. Presumably Giuliani was in the room, presumably Bolton was in the room starting to press the case that Rudy Giuliani should be pressuring Ukraine to investigate the Biden. Part of me wants to just ask Shrugie emoji, does it matter? Okay, we have more material facts that seem to prove up the case and will this make a difference? And part of me wants to say, as you just said and as we heard Senator Lamar Alexander say on Thursday night, it doesn't matter. We don't need more evidence. We know the case. Is there any reason in your mind that new revelations that come in at noon on Friday will make any kind of difference in senators decision to hear witnesses or testimony or new evidence?

[Barbara McQuaid]

Well it should. As we've seen in the recent weeks, the revelations about Lev Parnas that he has made. We've seen reporting about email exchanges@OMB about the President making this direct order. We have seen the revelations from John Bolton's book. If I were in the Senate, I would be very concerned that facts are going to continue to trickle out when that book is published in March. And the truth has a tendency to come out over time. We're going to know a lot more about this by the time November rolls around, that's for sure. And any senator who votes to acquit, but without asking to hear for all of the evidence that's available, I think risks being seen as an enabler and I think risks his or her own reelection or legacy in history as a result. And it seems that people are making decisions based on short term political expediency. Maybe it's A fear that President Trump is going to tweet about them or give them a disparaging nickname, which is the way people intimidate jurors. And we worry about that. But if they were thinking long term about how this will look in their own reelection or how this will look on the pages of history, I think they are really risking their own legacies and also risking the history of this country and what gets set as precedent in future abuses of power by presidents.

[Dahlia Lithwick]

I have three questions that are all piled up in my brain, but I think the first one I want to ask is just back to the new Bolton revelations. Does it matter at all to you or to anyone that the new revelations Friday afternoon suggest that Pat Cipollone is in the room, is involved in these conversations? I talked to Neil Eggleston, former White House Counsel, on the last podcast, and he seemed to think, no, it's okay that the Office of White House Counsel is acting on the president's defense team. Now, it. It feels a little hinkier than that. Right now, we actually have somebody, White House counsel, the guy who wrote all these letters declaiming absolute immunity and perfect privilege, and he's also in the room. He's a fact witness. Now, what am I missing? Why is this appropriate?

[Barbara McQuaid]

Well, generally it is considered unethical for a lawyer to handle a case as a lawyer where he is also a witness to that case. It's also just a bad idea. It creates some bad impressions and I think some assumptions of bias that a lawyer will try to act in such a way, or advance arguments that makes him look good, that covers for his own any potential misconduct or poor decisions that he has made in the past. In fact, I know that the counsel to the House Democrats sent a letter that was made public in the last week or so. I think it was sent January 21st or thereabouts, maybe a week or so ago, alerting Pat Cipollone to this fact. Hey, Mr. Cipollone, do we have this wrong? Weren't you involved in some of the facts that gave rise to this incident? Shouldn't you perhaps be recusing yourself here and letting others handle this? I think his response has been that my involvement has been so subtle and so minor as not to be involved in a major way in these facts. I think, as we learn more, that his involvement is more pervasive than we thought before. The closer we get to it looking like an ethical violation for him. I suppose the consequence for that is with the bar of the state where he is licensed.

[Dahlia Lithwick]

What I ask could possibly go wrong with November's election. So I've got two scenarios that really worry me.

[Patrick Philbin]

Imagine a Florida 2000 type situation with Trump in the White House.

[Rick Hassan]

Then those precincts can't be counted.

[Barbara McQuaid]

Pretty wide scale voter purge.

[Dahlia Lithwick]

I'm Dahlia Lithwick. I cover the courts and the law for Slate.

[Rick Hassan]

I'm Rick Hassan, an election law professor at UC Irvine.

[Dahlia Lithwick]

And together on Slate's Amicus podcast, we're bringing you stories from Rick's brand new book, Election Meltdown.

[Rick Hassan]

We're looking at the issues straining public trust in American elections.

[Dahlia Lithwick]

And we've been asking civil rights lawyers, public officials, local journalists, and disinformation experts for their election doomsday scenario. Imagine a deepfake the night before an.

[Barbara McQuaid]

Election, a scenario in which people did leave the Internet and take much more physical action.

[Patrick Philbin]

Our system is only going to work if people have enough confidence in it that they can accept the results.

[Rick Hassan]

We're not asking these questions, so we all spiral into despair, but instead to think about what we could do now before November to protect the most important thing we do as Americans voting.

[Dahlia Lithwick]

Of course, if you want to spiral into despair, that's totally on you. But if you want to be part of this unbelievably important conversation, do join US in Washington, D.C. on February 19th for the Amicus election Meltdown live show featuring former Florida gubernatorial candidate Andrew Gillum, MacArthur genius fellow and Vice President of the Cyber Civil Rights Initiative, Danielle Citron, and the Director of the ACLU's Voting Rights Project, Dale Ho. Go to slate.com live for tickets. And now back to our conversation with Professor Barb McQuaid, who teaches criminal law at the University of Michigan. You mentioned you're a little bit worried in addition to the outcome of this actual impeachment trial, setting precedents for future impeachment trials, and, and part of me a little bit wants to push back because of course, there are no precedents for impeachment trials. It seems as though impeachment trials are kind of governed on the fly. I think if we've learned anything, the precedent is whatever Mitch McConnell wants it to be. We don't actually derive meaningful legal precedents right from the Andrew Johnson or Bill Clinton impeachment trials. We just say there are a bunch of Senate rules, they're supposed to govern. They largely govern, except when they don't. And so I guess I want to ask what the precedential value of, say, arguments like Alan Dershowitz's arguments or Pat Philbin's arguments that if the President does it for complicated reasons it's not impeachable. Does that have any actual constitutional precedential value on the next impeachment? I mean, let's assume that Republicans want to impeach the next president who was a Democrat because they wore a tan Senate suit. Are anything that is being said or done right now in the Senate going to be binding on anyone?

[Barbara McQuaid]

So I think you raised a good point that in terms of technical legal precedent, we must decide a certain case because of the concept of stare decisis and that we follow prior case law. And this is the law that has been established in impeachment cases. I think probably not there, but I do think that when, when conduct occurs, it sets some norms and especially when the Senate blesses or ratifies it by permitting that behavior to go unchecked and not removing the president from office. For example, in this instance, President Trump, quote, fought all the subpoenas. So at the impeachment stage, rather than as Richard Nixon did, turn over documents and recognize that Congress, as a co equal branch of government, has the power to review documents of the president, to call to testify as witnesses, people who work for the president. Instead, President Trump just stonewalled across the board. Nope, nobody's coming. You're not getting any documents. If as a result of that process, Article 2 of the impeachment articles alleges that this is obstruction of Congress, if he is allowed to get away with that, I think you've just seen the playbook for future presidents. Don't ever give him anything because you saw what happened to Nixon. He was forced to resign. Trump, look at the way he played it. He just refused. He refused to recognize a co equal branch of government and he prevailed. That's the way you win. And so I worry that if the Senate ratifies this behavior, then we're just going to see more of it in the future.

[Dahlia Lithwick]

That leads me actually to you wrote a really smart piece in the Post this week about executive privilege and whether maybe the privilege had been waived when Donald Trump sort of went after John Bolton about the substance of some of Bolton's allegations. But I do think at the heart of what you wrote is this really important point. Again, it's the same point Neil Eggleston made on the last show, which is up until this administration, this was actually governed by a really subtle dance of accommodations, that it was not done by fiat on either side, that claims of privilege, claims of immunity were largely worked out by intra branch negotiations. And you make that point in your article that when you end that when one side simply says I'm taking all my information, I'm going home. Best of luck to you in the courts, by the way, we're gonna argue in the courts that this is non justiciable. That actually isn't just a kind of bit by bit question of what does privilege mean? What does immunity mean? That is an all out war on a process that has actually worked behind the scenes for decades, if not centuries, right?

[Barbara McQuaid]

It is. And it is for that reason that we have so little case law on these matters, because typically the legislative and executive branch will work out some sort of resolution. Perhaps the executive branch won't give everything that Congress is looking for, but they might get enough that they can proceed with their investigation. And so what President Trump is doing here is to say, not only am I not going to give it to you voluntarily, but you don't have the courts as a resort either, because I'm going to argue that this is a political question which is, as you said, not justiciable, which means I just win. You know, ordinarily, our tripartite form of government is set up kind of as a game of rock, paper, scissors. Everybody has the ability to check the other in some way and so that no one branch can run amok. But President Trump, by not being held accountable by the Senate here, has prevailed. His rock has crushed not only scissors, but also crushed paper. And that just can't isn't the way the framers intended for things to work. And so I think going forward, courts are either going to have to delve into these political questions and they're also going to have to pick up their game. It's so slow, they're able tothe president was able to drag out and stall and slow walk all of these lawsuits, you know, with regard to Don McGahn who was called to testify before the House, he was compelled to testify. President Trump blocked it, filed a lawsuit. And we still don't have a resolution of the outcome of that. And by the time we do get a resolution, it really will be too late to have any impact on whatever efforts President Trump wants to make to interfere with an election.

[Dahlia Lithwick]

And Barb, not to torture your metaphor, but there's something actually fundamental going on that is also a shift, which is that rock that is, you know, the executive branch simply crushing the other branch's prerogative se here actually gets weaponized toward the end of this week where we have senators saying, well, you know, we're going to have, if we let, if we call witnesses, if we allow for anything to go forward, you know, Then it's just going to be like the rock is just going to break all the windows. Right. Because then the Senate's going to take forever and the Senate is going to be all jammed up and this is going to take months. And there's a weird way in which that, again, announcement by fiat, we are not cooperating, has actually turned into one of the strongest arguments for Republican senators to just end the trial quickly.

[Barbara McQuaid]

Yeah. In fact, Lamar Alexander, who's announced that he does not want to see any witness, referred to that article of impeachment as frivolous, that the president, by asserting his constitutional privileges, should not be subject to impeachment or removal. That was the argument of Lamar Alexander. But if not, then what is the remedy when a president just simply says, I'm taking my ball and going home and you can't do anything to stop me? I suppose one argument that Republicans have made is you should have fought these battles in the House before bringing it to trial in the Senate, exhausted all of your remedies. So in other words, gone to court, taken it all the way up to the Supreme Court. If they ruled against you at that point, then perhaps you could have made this an article of impeachment. I think the response to Democrats there is is by the time we would have done that, the president would have been successful in running out the clock, we would be past the election, and then his efforts to interfere with the election would have succeeded before we could do anything to stop him. So if there's one thing to examine, I suppose, in going forward and how do we address this in the future? I would submit that in these presidential subpoena matters, perhaps we need to put things on an expedited track so that they can be resolved very quickly. I mean, you know, courts are not really equipped to do that. They like to have briefing schedules and oral argument and ponder and issue long written opinions. But we've seen them do it in the past. In the Pentagon Papers case, that case was worked its way up to the Supreme Court and a decision was made, I think, in seven days. So in extraordinary situations, it can be done, and I think it should be done in these kinds of cases.

[Dahlia Lithwick]

Before we leave this question of privilege and absolute immunity claims it's worth. Again, just flicking back at your article. You made the point that we haven't actually had assertions of privilege, we've just had the threat to assert the privilege. What happens now? For purposes of, you know, I guess assuming the trial is over, we are going to have this very academic conversation which I think you're trying to, to engage in with your piece about what executive privilege looks like. But is it all perfectly academic now?

[Barbara McQuaid]

No, I don't think so. I think that if the House wanted to, they could still call John Bolton or Mick Mulvaney or others, subpoena them to come testify and flesh out in more detail what is known. It could be yet another impeachment. There could be a second one. You know, politically that seems a bit untenable. But I think that the House has the authority to conduct hearings on any matter for which it has the power to legislate or impeach or take some other action. And so perhaps just to shore up the system, they could call in John Bolton to testify or for consideration of another impeachment and ask him. Now, that's where the President could invoke executive privilege, or what he has referred to as absolute immunity, meaning that the witness need not even appear at all, not only with regard to particular questions, but not even need to show up. That's a place where there could be litigation over executive privilege. If the House were to call John Bolton and President Trump were to assert privilege, the House could compel him to testify, which would require then President Trump to resort to the courts to seek to enforce the privilege. And I think that's where this argument could be made that President Trump has waived the privilege by his tweets, where he has said in great detail what John Bolton did and did not say to contradict the reporting that John Bolton in his book says that President Trump said he was tying aid to Ukraine to investigations of his political rivals.

[Dahlia Lithwick]

I wonder if we can talk for a minute about John Roberts. I think that there was a longstanding consensus that John Roberts was not going to handle this impeachment in the manner of, of Chief justice salmon chase in 1868. Leaping in, breaking ties, making judgments, calling witnesses. We all knew, I think, that John Roberts was going to follow the William Rehnquist playbook and do as little as possible and do it well. Which is Rehnquist's famous quote from how he handled the Clinton impeachment. I wonder if, A, you've seen any surprises in John Roberts Roberts conduct over the last couple of weeks and then B, whether you have any reason to believe that he is going to engage any heroics in the next 24 hours with regard to either calling witnesses or breaking ties or doing anything dramatic.

[Barbara McQuaid]

No. You know, John Roberts is one who famously testified during his own confirmation hearing that he believed that the job of a judge is to call balls and Strikes. Now, when you're on the Supreme Court, you actually have a whole lot more power than that, because your worldview certainly influences the decisions that you make in any case. And that's why we see so many, five, four decisions on things. But when you're a district court judge, a trial judge, it is a little more like the role of an umpire, of calling balls and strikes. But I guess I would say that when a judge is presiding at a trial, typically he will not allow one side or the other to cheat. And one of the things that the Senate rules permitted was for lawyers to make arguments without direct rebuttal. And so we heard Trump's lawyers say things like, Republicans were not permitted into the secret bunker where they conducted depositions, which is a lie. The so called secret bunker is simply a secure room in the Capitol Building where classified information can be discussed. And Republicans were not only invited, they attended. And so I think that ordinarily there'd be an opportunity for the prosecution to object to such a mischaracterization, and the judge would correct the record and perhaps even sanction lawyers who made misrepresentation of facts. I think because of the rules that were in place here, John Roberts was not permitted to take that kind of active role. And as a result, I think in the eyes of at least some members of the public me, it makes him appear complicit in this unfair trial proceeding. I think that's why Elizabeth Warren asked the question Thursday about, are you worried about the way the public trust in the court may be eroded because of your involvement in the trial here? And he read the question out loud, to his credit. I don't know that that was the right forum to call him out on it, but I share her views a little bit, that I think his reputation and the reputation of the court suffered a little bit for his involvement in this trial, which has been, I think, a little bit of a mockery of justice.

[Dahlia Lithwick]

My husband, who is a sculptor and not a court watcher, described to me this morning Robert's face as he was reading that question as akin to the blue guy at the restaurant when Grover is the waiter, and that blue guy with the eyebrows who's just looking completely aggrieved because he just wants his damn soup. And I was like, yeah, that's actually pretty apropos of what he looked like, the grumpy blue guy. Let's play that clip just for one second. This is Elizabeth Warren's question to the Chief justice about the dignity of the courts.

[Rick Hassan]

The question from Senator Warren is For the House managers, at a time when large majorities of Americans have lost faith in government, does the fact that the Chief justice is presiding over the impeachment trial, in which Republican senators have thus far refused to allow witnesses or evidence, contribute to the loss of legitimacy of the Chief justice, the Supreme Court and the Constitution?

[Dahlia Lithwick]

Okay, so let's agree. Ouch. And I think Adam Schiff, in his response, tried to backfill a little bit. If the attempt was to call out the Chief justice or embarrass him, Adam Schiff would, was quick to say, oh, no, no, no. Nobody doubts that you are in it on the side of justice. But I guess I want to ask you, as somebody who, like myself, has been perfectly captive over a career to the idea that courts are places of truth and justice, they are places of neutral fact finding that process presumably exists to get to the truth. Was this whole trial ultimately really devastating for those of us who believe in trials, who believe in judges and witnesses and that words have meaning and that precedent is precedential? Is this in the end sort of bracket whether as a political matter, it was risky and ill conceived? Because I think, as you point out, we may not know that till next November. But I want to sort of say, as a lawyer, do you feel like justice with a capital J took a hit with this trial?

[Barbara McQuaid]

I do. I think one thing that's important to remember is that impeachment is a political process which is different from the role of trials in courts where witnesses matter, truth matters, and a lawyer who misrepresents the facts is very quickly corrected and disciplined if they do that truth really matters in a courtroom. Here it is a political question. And Justice Roberts found himself, I think, in the. The uncomfortable position of presiding in an arena that is very different from the one he comes from of courts, where it is all about truth and there is no room for this sort of political advocacy. But let's not forget that the word that is used in the Constitution is that the Senate shall have the sole power to try all cases of impeachment. Try suggests trial. And I think that there are certain things about trials that we expect even in the impeachment context. And here, where the Senate has disregarded the value of witnesses and evidence, or where, as Lamar Alexander said, I don't need witnesses. I know what happened. And I still think it's not impeachable because the President has the ability to engage in this kind of misconduct if he believes it's in the national interest to be reelected and that when he stonewalled Congress it was his constitutional prerogative to do that. That is just not consistent with the Constitution that I know. And so I do think that justice has taken a hit here. And to the extent the public was feeling a lack of confidence or trust in our institutions, I think that public trust has taken a big hit here as well.

[Dahlia Lithwick]

So right before I release you back into the Michigan wilds, let me ask you this final question. We don't know what's going to happen between now and tomorrow morning. I had joked to my producer as we were planning this show today that maybe we should just call a Ouija board, just find some psychic to tell us what is going to happen in the next few days. Do you have and I should flag that as you and I are talking, we've now had Lisa Murkowski announce that she's not interested in calling witnesses. Do you have any sense of how the next hours and days are going to go in your mind?

[Barbara McQuaid]

Well, it seems unlikely at this point there's going to be sufficient votes for our witnesses. So in that case, I imagine that they'll go straight to closing arguments and then take a vote. It does not appear that there will be 67 votes in favor of removal. And so so that will mean that the president is acquitted. And I think that this president will take that as a mandate and use it. I'm sure we'll be hearing about it at his rallies between now and November. But I suppose it also gives Democrats an opportunity to talk about the kind of conduct that the president has engaged in and perhaps give some incentive for voters to correct any wrongs that they perceive were done by the Senate. But at the end of the day, it's the voters who have the most power of all. And perhaps it will spark some voter turnout and inspire people to go to the polls.

[Dahlia Lithwick]

Professor Barbara McQuaid teaches criminal law at the University of Michigan. She served as U.S. attorney for the Eastern District of Michigan and served as vice chair of the Attorney General's Advisory Committee, co chaired its Terrorism and National Security Subcommittee. Watch for her on NBC News and msnbc, where she serves as a legal analyst. And her writing and Twitter feed have been among the bulwarks of my sanity in the last little while. So, Barb, thank you very, very much. I know you're super busy and it's been a pleasure having you on today.

[Barbara McQuaid]

Thanks so much, Dahlia. My pleasure to be with you.

[Dahlia Lithwick]

And that's a wrap for this extra special, special, timely, special TikTok version of amicus. Thank you so much. As always for listening in. If you want to get in touch, our email, as always, is amicuslate.com you can always find [e-mail] amicus podcast we love your letters. Today's show was produced by Sara Burningham. Gabriel Roth is Editorial Director of Slate Podcasts and June Thomas is Senior Managing producer of of Slate Podcasts. We will be back tomorrow with the second part of our Election Meltdown series, all about the weakest link in our elections. Just straight up incompetence. Until then, thank you for listening. Talk to you soon.