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.