← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Impeachment’s Message and Meaning
01:22:19
What we’re learning from the second Senate trial of Donald J Trump.
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- [00:05]
Bob Bauer
It is plainly untrue that the president has the same free speech rights as any private citizen.
- [00:13]
Anat Shankar Osorio
Our response to what Bruce Castor says should be no response. It doesn't matter what he says. It matters what we do.
- [00:23]
Dahlia Lithwick
Hi, and welcome back to Amicus. This is Slate's podcast about the courts, the law, and the rule of law. I'm Dahlia Lithwick. I cover those things for Slate. And we are taping this show as Donald Trump's attorneys present their defense of the former president in his second impeachment trial in the United States Senate. And I confess, I spent the week glued to the trial, not merely for professional reasons, but kind of as an emotional capstone to the four years that have come before and the kinds of things we've thought about and talked about on this show. So it seems a foregone conclusion that there's going to be a second acquittal. And this raises real questions, especially for a lot of folks who've written to me this week about why we're doing this at all and whether it's time to just move on. And if we can't do it thoroughly, should we do it in a truncated way? And this week, we're going to ask questions about those issues. First of messaging guru Anat Shankar Osorio, and then of Bob Bower. He's former White House counsel to President Barack Obama. He also led the Biden campaign's legal efforts this past fall. Now, later on in the show, Slate plus members will get to hear from Mark Joseph Stern on what's happening at the Supreme Court. Says to the Mark and Dalia deep dive segment of this show. Slate plus members also get benefits like zero ads on any Slate podcast, bonus episodes of shows like this one, Slow Burn and Dear Prudence. And you'll be supporting the work we do here on Emma amicus. It's only $35 for the first year. To sign up, go to slate.com amicusplus this week really did feel like the perfect legal encapsulation of all the Trump years. As we have talked about for such a long time on this show, there cannot be anything that even resembles rule of law if the hallmark attitude of the president and the people around him is that law is just for suckers. And yet it does appear that despite the best efforts of House impeachment managers to prove up their case against the president for inciting a violent insurrection at the Capitol on January 6th, there's going to be no law. There's going to be no constitutional accountability. Yet again, it feels like impeachment is for suckers now. A month ago, it felt like the national mood might have permitted something different. But not anymore. So on Tuesday, as the trial opened, the former president's legal team signaled really how very little any of this mattered when Trump's first lawyer, Bruce Castor, delivered a rambling, ill focused opening statement that I think we could have just redubbed 17 random things I think about senators. But it didn't matter. On Wednesday, some Republican senators were doodling and sitting in the gallery with their feet propped up. It didn't matter. On Thursday, more than 13 GOP senators were just absent from the chamber altogether as the managers argued their case. And several Republican jurors coordinated on Thursday night with the president's defense team, which confirmed that while all of us are indeed multitasking in Covid, nobody is working more jobs at once than the Republican senators currently serving as jurors, witnesses, victims and co counsel. And in the impeachment effort, that means that it all feels a little futile and a little over determined. This process that is neither a legal effort nor a political effort, nor even exactly a constitutional effort. It feels like impeachment. Despite the Framer's intentions, and they thought very hard about this, impeachment has become just a big national communications problem, a messaging glitch. We're going to tackle some of the intentions of the framers and their concerns and the legal arguments around this trial, but Not a trial with Bob Bower in a few minutes. But before we do that, this communication messaging piece. The last few shows we've talked to folks who have urged us to think about legal problems through non legal lenses and I've gotten a lot out of that. And so we wanted to take another run at the Same Questions with Anat Shankar Osorio. Anat is a communications consultant, researcher and author who applies tools from cognitive science and linguistics in her work with progressive organizations. And in addition to running her own firm, ASO Communication, she's the author of Don't Buy the Trouble With Talking Nonsense about the Economy and she's host of Words to Win by a podcast about progressive wins. Anat has advised a whole lot of people about how to talk about the things we want to talk about. And I should note here that I also have been just really deeply influenced by the ways she taught me to think about questions around voting in the elections this past fall. So we wanted to ask her how to message this impeachment and it's a delight. I'm such a huge fan. Anat, welcome to the podcast thank you.
- [05:43]
Anat Shankar Osorio
I could go on and on and gush about my own fandom of you, but I suppose we have business to attend to.
- [05:52]
Dahlia Lithwick
Let us bracket the fandom for another day. Just set the table for us about how you have come to think about language and messaging and politics and all the ways in which, not to put too fine a point on it, but progressives just really are generally suckish at some of this.
- [06:13]
Anat Shankar Osorio
Yeah, it's hard to know where to begin. I guess I will rely upon a trusted canard that I trot out a lot, which is that if the left had written the story of David, it would have been a biography of Goliath, by which I mean we like to talk a whole lot about our opposition. And frequently, if you look at progressive messaging, one hallmark of it across issues is that we like to begin with some permutation of boy, have I got a problem for you. And it turns out, shockingly, that people got 99 problems and they don't want ours. They are generally not shopping for new things, new to worry about. They have plenty on their plates, especially right now. And so when we present ourselves as, boy, have I got a problem for you. And when we present ourselves ever and always in the, quote, resistance in opposition to what the other side is doing, we unwittingly actually cement their power, cement their ideas, cement this sense that doing anything about it is an exercise in futility. And while that may kind of engender a fight response among our hardcore and dedicated activists, many of whom I'm sure listen to you, among a broader base, by which I mean people who agree with us ideologically but are not politically motivated or not sort of active, may not even be voters, it invokes a freeze response. Because in a battle of fear against fear, the right will always win. We will never be more terrifying than them. And for most people, fear causes a shutdown response. So, I mean, that's a very broad strokes, kind of look at what we know about language and how language works and. And the kinds of mistakes that we keep committing over and over again.
- [08:05]
Dahlia Lithwick
And I guess this leads me to. I don't know. I know you were so. When I invited you, you were so careful to say, I'm not a lawyer. I'm not a lawyer. And so I don't want you to make declamations about law. But it has noted, I guess, for purposes of this conversation, that law is words and law is messaging. And this impeachment trial, if you strip away all the insanity around it, is about using words to persuade and Also about kind of interrogating Donald Trump's words over the course of the last six months. And I wonder if there's a way in which, if you take away, and I know you do think about this a lot, the notion that language is rooted in truth and rooted in fact, it's really, really hard to do law this way. And one of the strange split screen phenomena of watching this impeachment process is that words seem to be totally unmoored from anything. Right. It's just everybody's talking. We've had a lot of talking. And yet it feels as though using this as a search for what happened and why it matters is utterly useless. And so I guess I'm asking if we've disconnected law from language, is everything you think about just fall apart?
- [09:31]
Anat Shankar Osorio
I don't think that we've disconnected law from language. The law. And it's not alone in this. This is true. For example, when I do projects on the economy and I'm dealing with a bunch of economists, anybody who has a particular training and a particular orientation and an expertise in their domain tends to think that whatever language they're using is an attempt at accuracy. And it's built inside unconsciously of a rational actor model where we think that we will just tell people the facts, we will just tell people the truth, we will just tell people what is going on, and then they will be able to reasonably come to the correct conclusion. But in point of fact, that is not how people reason and come to judgments. That is not how people understand things. And that is true of all people because all of us are sense making machines. So let me just give you a super particular. For instance, in an experiment that we did a number of years ago, brought people into a lab and we asked them to think about economic inequality and we presented them the facts the way that economists do. This quintile has this much, this quintile has that much, this quintile has that much, et cetera. And for half the sample, we said the gap between rich and poor is growing, which is the dominant metaphor to talk about inequality. We talk about an achievement gap in education, we talk about a health disparity in that realm. We talk about a wage gap, a gender wage gap, a racial income gap, et cetera. Gap is like we liken this abstraction, which is a financial difference, to a physical difference, a chasm. It's like the Grand Canyon. Wealth is, you know, over here and poor people are over there. And for the other half the sample, we said the economy is increasingly off balance. Then we Asked everybody, is inequality a problem for the economy overall and our gap people? 80% of them said no, it's not a problem for the whole economy. 20% said yes, the exact reverse proportion was true. Of our off balance people, 80% said it's a problem for the whole economy, 20% said it wasn't. So why is this in reality? Inequality is neither a gap nor an imbalance. And it's also both. Because anytime we need to refer to abstraction, we default automatically and unconsciously to conceptual metaphor. That's just how we talk, right? Your point flew right by me. I'll have to chew that over. I couldn't swallow your argument because we have a conceptual metaphor that likens ideas, ideas to objects. So this is neither true nor not true, right? This is a way that we make sense of the world and the law, like any domain, requires language, which means that by definition it requires conceptual metaphor in order to, you know, what is justice? Is justice like scales? That's a metaphor, right? So what's happening is that people are continuously attached to this rational actor model and stubbornly cling to this idea that we just need to be right, which we are. And then we just need to tell people. We just need to tell people the truth. But what we see is that facts bounce off of frames. A better descriptor of the human cognitive processing system would be I'll see it when I believe it, not the other way around. This is why people routinely tell us, I don't see racism, I don't see sexism, because the instances that occur before their very eyes aren't categorized as such. And so they come up with rationalizations to discount them. So what happens in this trial is that people have a pre formulated idea or judgment or argument, and then whatever facts are presented to them, they find a way to, to send those facts outside of that frame. And we're very good at that as humans.
- [13:42]
Dahlia Lithwick
The thing I've been really struggling with, with impeachment is the absolute factual reality that these Senate Republicans were in the room, right? Some of them were calling their family, they were texting. I always believed at some point rational self interest ends when you are viscerally afraid for your life and you. So you're trying to just get proximate to that right? To that frame where you were here, you saw it, you don't need witnesses because you witnessed this. And you get things like impeachment manager Stacy Plaskett saying things like this really happened, this happened, you were here, right? And you get this amazing call and response. So Many of the impeachment managers trying to make this physically proximate. You were sitting right there. You were in this. Right. This physically occurred in this room. And that's supposed to reattach fact to the experience of the folks who are in the room who are now making that experience go away. And what you're saying is they've simply constructed a frame whereby that bounces off, whereby even if Stacy Plaskett says this happened, you were here, it's immaterial, that's what you're saying?
- [14:54]
Anat Shankar Osorio
I don't know that it's immaterial. I think what we see and you know, we're doing at this point nearly nightly public opinion research, and basically, if we look at the place in the narrative where the hole is for voters, speaking in broad strokes, and obviously where the hole is for Trump 2020 voters and Biden 2020 voters is different. The flaw is not this happened. This was violent. You could have been killed. The flaw, the whole, the missing piece narratively, is why did this occur? What caused this to happen? And when we look at deeply conservative people, people who are sort of at their core ideologically conservative, there are certain psychological underpinnings to their thought structure that we have to contend with. One is many of them are adherence to what John Jost calls a just world theory. In short, just world theory says good things happen to good people and bad things happen to bad people. And there needs to be some sort of explanation, some sort of underlying vindication and rightness and order. So if, for example, people are struggling to make ends meet economically, it needs to be the case that they have somehow done something wrong. Because otherwise we would have to believe that we live in a society. We'd have to believe in reality. We'd have to believe that we live in a society in which people are systematically barred from well being based upon their color, based upon their accent, based upon their gender, which is in fact true. But if you believe unconsciously in a just world theory, that can't be the case because that would not be a just world. And your material wealth, your material well being, would be nothing more than what it is, which is a product of winning the womb lottery. And it wouldn't be about you and your goodness. So you have these Republican senators, and I hope it's clear I have zero, like, negative excuses for them. I'm also horrified and angry and all of the things. It's, it's, it's difficult actually, as a word person to formulate the words for just how disgusting this is. But if you're Ted Cruz or if you're Mike Lee or if you're Josh Hawley and you're being asked to believe not that the violence occurred, you know, the violence occurred, you're being asked to believe that the proximate cause of the violence was spreading lies about the election, then you would have to believe that.
- [17:38]
Dahlia Lithwick
You.
- [17:40]
Anat Shankar Osorio
Were part of causing the violence against yourself.
- [17:45]
Bob Bauer
Right.
- [17:46]
Dahlia Lithwick
Unindicted co conspirator. Right.
- [17:49]
Anat Shankar Osorio
And that's just simply impossible for you to believe either cynically, out of self preservation. Even if you do believe that somewhere in the core of your being, you can't admit that, because to admit Donald Trump's guilt is to admit your own, because you did the same thing. So maybe that's what's going on and it's all a ruse or maybe perhaps even more pathologically, what's going on. And, and sidebar. We see this with, with ADH appearance to QAnon, this sort of very strong attachment to a just world theory. Maybe what's going on is at a deeper level, they are incapable of internalizing the notion that anything that they said actually had anything to do with, you know, the guy shirtless in the face paint and, you know, the guy with the Confederate flag and the rest of it, because they would have to imagine that at some level they have. They're fundamentally part of creating, causing, fomenting evil, and they refuse to believe that about themselves.
- [18:59]
Dahlia Lithwick
I, I was thinking today about your lodestars of how you tell a good story, how you message something. And you need good guys and bad guys. You need a clean narrative, you need shared values. All the stuff that I think, having watched the first and this impeachment that the managers did really well, like, much better this time. And there's no dangling tentacles of who's Sondman again? And no, it's not Sondman, it's Vindman and it's Sondheim. No, it's not. It's Sondberg, like, right. It was so confusing that even I, who would have to go on TV and talk about it, couldn't explain the conspiracy, couldn't explain quid pro quo. This is tight. This is clean, right? There's good guys, there's bad guys, there's values. What, if anything, would you do different if you were wrangling the impeachment managers and the story they've tried to tell this week?
- [19:54]
Anat Shankar Osorio
I agree with you. They have absolutely done an incredible job. I mean, in the face of ptsd, let's just be fair and honest. So, you know, the fact of doing a, like, halfway decent job in the midst of that is astounding. And they've done an excellent job. They have led with shared values. They have made this about who we are as a country. They have made this about what we expect, rightly so, of our elected leaders. No matter what we look like or who we vote for, we believe our elected leaders have a duty to uphold our democracy and govern in our interests. That's kind of one of the higher order values that we've pushed and pushed and pushed. The place where I would argue they. And, And I'm.
- [20:42]
Dahlia Lithwick
I'm.
- [20:43]
Anat Shankar Osorio
I'm saying this haltingly because it's not a fair thing to demand of them. So I'm about to say a not fair thing. And here I go. Yeah. Right now, the biggest problem that we have when we look at the way the public is perceiving this trial, is that what they want is pandemic relief. What they want to talk about, what they want to focus on, what they want to hear their leaders doing is delivering relief. That is, number one, number two, and number three, in their minds. And so anything that feels to them like a distraction or a delay or a complication around delivering pandemic relief, they don't like. And so the thing that they could have done, not necessarily during the course of the trial, where you have to present evidence and talk about what actually occurred, is making a closer attachment between the failures of these people to deliver US Aid and to prevent this pandemic and the failures of these people to respect our rights. So what would that sound like? It would sound like no matter what we look like, where we live, or who we vote for, Americans believe our leaders should act in our interest, from ensuring we can provide for our families to holding those who would do us harm to account. But today, the same Republicans who left millions of us grieving our loved ones and struggling to make ends meet are letting a president who incited a deadly attack on our country get away with it. So it's making the attachment back. They failed you on Covid. I. I don't know today's number. Apologies. I haven't looked it up, but. Plus 400,000Americans. They turned a horrible virus into a devastating pandemic. And they tried to distract us from their failures by sowing doubts and casting aspersions on the votes of black people, young people, new Americans, because they hoped we would look the other way while they denied us the basic sustenance so that they could hand tax breaks, so that they could hand kickbacks to their corporate cronies, they fed this big lie because they knew that we would not vote for them. And in this country, we believe that Americans, that voters, we pick our leaders, our leaders do not pick which voters to heed and which to silence. So the need to attach back as much of a like, but that's a totally different issue. But that's like a side thing. Letting go of the pandemic, which by the way, they didn't do right. They are fast tracking, they are pushing, pushing, pushing the pandemic, but rhetorically, just rhetorically letting go of the connection between they failed you, they screwed you, they left your family for dead, they wouldn't give you relief, they're blocking it. Now, these same people do not govern in your interest. And here is the litany of ways that is true.
- [24:06]
Dahlia Lithwick
I love that A not because it answers a little bit this problem, this messaging problem that I think Jamie Raskin tried to rescue at the end of his closing on Thursday, because I think there is this sense that this is backward looking, this is vengeful. Here's Nikki Haley now saying, oh, we all make mistakes. Poor little Trump, a mulligan one's heart goes out to him. He was so flawed. And all the ways in which if you cast this as a backward looking, vengeful enterprise, it doesn't feel salient to people who are trying to look forward and figure out if they can keep their jobs and they can not die in a pandemic. And I felt that Raskin made that turn at the end on Thursday where he tried really hard to say, and I think we heard it from Joe Negus as well. But this idea that if we allow this to go unchecked, it will happen again. And that was very, very explicitly, I think brought out that this isn't just about punishing Donald Trump. This is about an encroachment of an idea about power and about the connection between violence and power that we have to arrest because it's in the future. And I think that's at least a version of it's not necessarily Covid connected, but it's a version of we're not doing this because we want to punish Donald Trump. We are doing this to stop in its track an authoritarian illiberal move towards violence and politics and that if we don't stop it, the next one's going to be worse. That felt like it was coming through, at least to me on Thursday, the.
- [25:47]
Anat Shankar Osorio
Way that I would tweak that. And this sort of gets to the essence of the first thing I said about saying what you're for rather than what you're against is that that argument is about amelioration of harm and stronger arguments are about creation of good. And so in lieu of saying if we do not do this, it will happen again, which is a classic fear and threat based message, I mean, I can't imagine a more textbook that that is a threat based message is to say when we stand up, when we uphold our oath of office, when every single senator in this chamber does right by the American people, we can make this a government of, by, and for the people, where we govern in people's interests and we ensure that every decision that we make is for the people we elected us. Whether that's holding those who would do us harm to account so that it never happens again, or it's quickly delivering the economic relief, vaccines, school and small business support they have been desperately needing. And so it's basically that. But the inverse, it's not about making you afraid that this will happen again. Because when people are made afraid, their amygdala starts firing and their prefrontal cortex literally is starved of blood. You can't have both things going. And so if you're asking people to sort of be in their rational brain as observers of this, then you need to present this as the possibility of creating something good, of having a government that acts with and for the American people and genuinely reflects the very best of every kind of American, as opposed to ending something horrifying.
- [27:41]
Dahlia Lithwick
We'll be right back. I wanted to ask you about one central metaphor that I thought was interesting and creative, and that is impeachment. Manager Raskin, who says this isn't like shouting fire in a crowded theater, right? The classic speech formulation of what is incitement.
- [28:08]
Anat Shankar Osorio
This case is much worse than someone who falsely shouts fire in a crowded theater. It's more like a case where the town fire chief, who's paid to put.
- [28:18]
Bob Bauer
Out fires, sends a mob not to.
- [28:21]
Anat Shankar Osorio
Yell fire in a crowded theater, but to actually set the theater on fire. And who then, when the fire alarms.
- [28:27]
Bob Bauer
Go off in the car, calls start.
- [28:29]
Anat Shankar Osorio
Flooding into the fire department asking for help, does nothing but sit back, encourage.
- [28:35]
Bob Bauer
The mob to continue its rampage, and watch the fire spread on TV with glee and delight.
- [28:44]
Anat Shankar Osorio
So then we say this fire chief should never be allowed to hold this public job again and you're fired and you're permanently disqualified. And he objects and he says we're.
- [28:55]
Bob Bauer
Violating his free speech rights just because.
- [28:58]
Anat Shankar Osorio
He'S pro mob or pro fire or.
- [29:01]
Bob Bauer
Whatever it might be.
- [29:03]
Anat Shankar Osorio
Come On. I mean, you really don't need to.
- [29:06]
Bob Bauer
Go to law school to figure out what's wrong with that argument.
- [29:09]
Dahlia Lithwick
I guess I'm curious, because you study language and metaphor, if this idea of taking this metaphor that has always been, or classically been the metaphor of what incitement would look like and then reframing it as. No, that's actually not what Trump did. What he did is so much worse. He encouraged people to go set the theater on fire and then to refuse to put it out. Is that in your wheelhouse of how we think about metaphor, a useful move?
- [29:41]
Anat Shankar Osorio
Yeah. I mean, this is gonna seem like a distinction without a difference. It's not a metaphor. It's an analogy because it's occurring at the conscious level. It's constructed. It's not meant to sort of fly by. You know, I think what's interesting about this case is that you have sort of a Russian nesting doll of this question yelling fire in a crowded theater. Basically, that classic formulation is about telling people a lie to scare them. That's what it means to. To lie that there's a fire, and then everybody goes rushing out in order to save themselves. The way that Donald Trump and Ted Cruz and Josh Hawley and the Rest of the 146 members of Congress who voted against certification, the way that they incited violence wasn't just any old way. It wasn't just, you should go attack the Capitol because we're right and they're wrong and we should be in power forever. It was a very particular lie. It was a lie about the votes of black people, of young people, of indigenous people, of new Americans. It was race baiting in the coded speech of a dog whistle.
- [30:58]
Dahlia Lithwick
Right.
- [30:59]
Anat Shankar Osorio
It was votes in Philadelphia. It was voters in Detroit. All of that is code for black people. Everybody knows that just because you don't say it. So I think that the analogy of, you know, the fire chief lighting the thing on fire, I think probably the most apt analogy is the fire chief handing out tiki torches and telling people, go torch the building and not doing anything to call it off. I think the yelling fire in a crowded theater gets confusing because that's not really about trying to destroy the theater. It's forcing a stampede, not a sort of deliberate attack. And it's important to keep this in the. They attacked our country. That is one of the. Through lines that we've seen over and over in the research that 1621 was an attack on our country. Was an attack on our country incited. It was an attack on our country fueled by the lies of a handful of politicians determined to hold on to power they didn't, do not deserve. I think it's a powerful and apt analogy. I think the connection back to what it is not is never helpful.
- [32:17]
Dahlia Lithwick
Right. So this is useful. And it makes me remember that the classic Oliver Wendell holmes formulation from 1919, the case of Schenck vs United States, where Holmes, writing for the court, says the most stringent protection of free speech wouldn't protect a man in falsely shouting fire in a theater and causing a panic. And we always forget when we think that metaphor that Holmes was really clear, that it's falsely shouting fire in the crowded theater. That would be problematic. You would hope that if there is in fact a real fire in a crowded theater, you would want people to shout. So what you're saying is there's already a lie baked into even the classical formulation of what the court in Schenck wasn't protecting. You're going one further and saying this is a lie about the lie, which is classic anat formulation. So I want to talk just for a second about the videos because there's a very deliberate decision to do this trial by film. And I'm sure you saw some of them and you're probably as sick watching them as I am from seeing the new footage. But it's interesting to me that at least initially, one of the objections has been to the extent there were messages from Trump's lawyers that there's something wrong with movies, with doing this by filming. I wonder what trial by film signals to you. Is this a smart messaging tactic or is it just too easy to say, oh, right, we're trying the TV president by movie. Perfect scene.
- [33:54]
Anat Shankar Osorio
Yeah. Visuals and moving images are just intensely more powerful than words. And I say this as the words, lady, regardless of what people's conscious and reasoned argument is about the images, the moving images that they're seeing. Oh, that it was manipulated. It was this, it was that. That's inconsequential because this is a battle of hearts, not minds. And even if you're a die hard Trump supporter or you're on the fence and you're, you know, what we are calling now in our research, a conflicted Trump voter who's sort of having second thoughts or who, you know, doesn't believe or has detached from the big lie about the election, the impact emotionally of seeing these images in this sequence is so incredibly powerful that even if you construct on top of that a conscious. Well, it's because they edited the footage that way. That's not how it's affecting you. And that, in fact, their condemnation of the trial by TV or the trial by footage is proof positive that they know how powerful it is, that they know how effective it is. Otherwise they wouldn't be yelling and screaming about it because they would consider it sort of null and void. I think that it's very, very hard, you know, if you're not a person who has ever been held up at gunpoint. And sadly, I am a person who, like, if you have never had the experience of thinking, oh, today, this is it. This is. This is my last day. And wondering how the. How the information will be conveyed to your parents or to your partner or to your children, if you've never actually internalized that experience, it's. It's impossible to imagine what that feels like inside of your body. And so the best that we can try to do is to construct that feeling for people so they understand the emotional stakes here and why this is so vital and why this is so serious and why it is so incredibly important that every one of our elected leaders actually stand up and do their duty, demonstrate the courage of their convictions, and stand with and for us, because they're supposed to represent us. So, no, I think it's an incredibly powerful tool, and I think they know that it is, and that's why they're making up these bullshit stories about.
- [36:29]
Dahlia Lithwick
Leads me to the only other impeachment question I wanted to ask Annat, which is, as a message person and a words person, what does one do with Bruce Castor? I mean, what does one do with. I don't even know what all that was. I really do think Lionel Hutz would have knocked this out of the park. Like, this was just shockingly bad lawyering, and maybe he'll recover. But what do you do when the message from the other side seems to be, I don't even need to bother to construct a message that I'm not even gonna. There feels like there has to be some component of Own the libs here. The pure joy of not even mounting a comprehensible defense is its own screw you signal. And maybe I'm overreading it, but what does one do when the choice is made to not even present a coherent counter narrative?
- [37:33]
Anat Shankar Osorio
I will say the thing that I have been saying since the 2016 election, talking about Trump, is how we got Trump. That applies to Bruce Castor. The left has become, throughout this entire period, like cats with a laser pointer, basically saying, can you believe he just said this? Can you believe he Just said that now. He said this now. Kofei Fei. Now, you know, I don't even remember anymore, right? Because, like, the last four months have been 475 years, but all the completely incoherent, nutty, you know, everywhere from incoherent to slanderous to horrifying to terrible. And our instinctive response, because we are either horrified and disgusted by the racism, by the misogyny, or we're horrified by what you just said. Like, they're not even pretending, right? They're not even going to turn in the homework. And they still are. Like, you're still going to give me an A, Like, I'm not even going to bother to do the assignment. But when our reaction to that is to lift that back up is to say, can you believe that Bruce Castor was basically like uttering nouns and verbs in some sort of semblance of a non coherent order? What we're doing is we are robbing ourselves of airtime to say what we're for, to say what we believe, to say what we want. Our response to what Bruce Castor says should be no response. It doesn't matter what he says. It matters what we do. And what we do is understand that either we have lawmakers who will do their duty, stand by their oath to the Constitution to protect our rights, govern in our interest, from pandemic relief to economic support, to holding those who would incite a deadly attack on our nation to account, or will administer justice ourselves as we just did in this election. And that justice will be administered at the ballot box. Because at the end of the day, it doesn't matter what they say. It matters what we do. And because. And I'm devastated to, you know, go here, but let's just be honest for a moment.
- [39:59]
Bob Bauer
It.
- [40:00]
Anat Shankar Osorio
We're not going to have a conviction. They're going to fail to convict. I don't think I'm, you know, I'm not shocking anybody. I would love to be wrong. So what are we going to do at that point? What are we going to do at the point where some amount of our voters who thought, yes, of course, he's guilty, but don't do this. It's a waste of time. It's a looking backwards when we need to move forwards, and it's a lost cause. Why are you plunging yourselves into a lost cause? And why are you further cementing sort of division and anger when we need to pass these giant recovery act bills? Focus there. Do what you need to do. Because we need money. And the thing to say about that is, throughout this incredibly horrible last 12 months, Americans have proven that we pull through by pulling together. We delivered masks and we delivered meals. We marched to demand justice for all. And we voted in record numbers despite every barrier put in our way. They can knock us down, but they will never knock us out. And regardless of what a handful of Republicans do in this trial to demonstrate that they are perfectly willing to incite violence, perfectly willing to spread lies about the votes of our fellow Americans to try to hold on to power they do not deserve, it's time for us to issue justice. Because it's always been on us. And we have proven time and time again that no matter what they do to us, no matter what barrier they put in our way, we will scale it, we will overcome it, and we will make this a place where we have a government that acts in our interest, delivers on our needs, and makes justice and liberty for all. No exceptions. And I think that that's what Democrats are going to have to prep to be saying to people, because otherwise, you know, it becomes despondency, it becomes despair. It becomes, why did you engage in this exercise in futility? Which I hope it's clear. I don't think of it in that way. I think it's absolutely vital and necessary. I'm just talking about messaging to the average voter.
- [42:21]
Dahlia Lithwick
And that's your answer to the question I know you spent again, I heard you say over and over again, stop centering Trump, stop saying coup. Stop saying hoax, stop saying stolen election. Don't center his message. That's going to be going forward. Your guidance, which is, stop talking about Marjorie Taylor Greene, you idiots, because you are just yet again being sort of powerless and reactive. And instead of saying what you're for, pushing her crazy to the top of the heap, right? That's what you're gonna say.
- [42:56]
Anat Shankar Osorio
So it is pretty depressing to watch us only have, you know, metaphorically beheaded Trump, only to recast him in a younger female version.
- [43:11]
Dahlia Lithwick
Nuttier version, right? Like, vastly nuttier, I think.
- [43:15]
Anat Shankar Osorio
I don't know. Jury's out. It's hard to say. It's hard to say. I guess it depends which things you're comparing. We need to condemn this person. We need to condemn Josh Hawley. We need to condemn Ted Cruz. The issue is the way that Democrats and the way that the left more broadly is sort of making her a superstar. First of all, it's literally minting her a fortune. She is making money off of this. That is a fact. And what concerns me is the Todd Aiken effect. And for those of you who do not remember Todd Akin, famous Missouri representative who you know like to play amateur ob gyn, they all like to have their side hustle and informed us with his non medical degree that if a woman is, quote, if it's legitimate rape, quote unquote, that she won't get pregnant because the body has a way of shutting these things down. Thankful you Dr. Akin and what happened with that is that he was soundly condemned. However, it had the effect of making the rest of his party who believe that people should be forced to stay pregnant and to give birth regardless of the circumstances of getting pregnant, including rape, incest, including, you know, whatever is happening with the fetus and whatever endangerment that poses to the pregnant person, they suddenly look like Alan Alda. They're suddenly a bastion of like, right thinking and empathy because they actually credit the notion that a person could not want to have sex with someone and become pregnant. And what happens with Marjorie Taylor Greene, and we see this already in our polling, is that, I mean, I hope that Ted Cruz and Josh Hawley are feeding her checks because she is doing them. A massive favorite, right? She is shifting what is considered to be beyond the pale, what is considered to be too nutty, what is considered to be too extreme, where suddenly they're now looking like Mitt Romney. And that's the danger. The danger in focusing on her extremity and her nuttiness is actually letting the other folks off the hook. So there are ways to condemn these people. We need to condemn them as a category for feeding and spreading lies, for attempting to suppress the will of the people, for attempting to subvert our democracy, and for issuing death threats. You know, if you issue death threats against your coworkers, you get fired. The end.
- [45:54]
Dahlia Lithwick
That's. Yep, I got nothing. And that Shankar Osorio is a communications consultant, a researcher, an author, a speaker. She applies tools from cognitive science and linguistics in her work with progressive organizations. She runs her own firm, ASO Communications. She's the author of Don't Buy the Trouble With Talking Nonsense about the Economy, upon which her phone has been stacked on a pile of them. She's also host of Words to Win by a podcast about progressive wins. And I really, I think what I want to say anat, is that as somebody who, if I had a bumper sticker on my butt, it would say in the last four years, words matter. Words matter. And trying to affix that to theories of the rule of law. But boy, you live it and you put real meat on the bones of that idea. And I'm so incredibly grateful for your work. So thank you for joining us. This was a big frame shift that I needed. Thank you.
- [46:56]
Anat Shankar Osorio
Thank you for having me and thank you for all of the work that you do making sense of things that make no sense.
- [47:06]
Dahlia Lithwick
Our next guest, Bob Bauer, I think of him sort of as a Where's Waldo of the past few months, and I would talk to him about any component of that. He and Jack Goldsmith, who we had on the show a few weeks ago, co authored After Trump Reconstructing the Presidency. It was published this summer. I think it is the roadmap to thinking our way through some of the issues we talk about on this show. Bob served as White House counsel to President Obama. He's a professor of practice and distinguished scholar in residence at NYU School of Law and the co director of the university's Legislative and Regulatory Process Clinic. In 2020, he also served as a senior advisor to the Biden campaign. And he's going to co chair Biden's commission to study reforming the Supreme Court. And in all his ample free time, he's here with us today. So, Bob, thank you so much for coming back to the show.
- [47:58]
Bob Bauer
It's a pleasure. Thank you.
- [48:00]
Dahlia Lithwick
And I wanted to, I think, start with this existential struggle that I think a lot of progressives are having this week around impeachment, which is there's just an overwhelming sense that nothing about this is serious. The fix is in. You could get up and you could dance and the Republican senators wouldn't care. The votes are not there. Donald Trump's defense team seems to be, I don't know, freestyling, interpretive, dancing. And yet there's a deep sense, Bob, that if we succumb to that, we're just colluding with it. We're just allowing it to not matter. And one of the reasons I wanted to talk to you is to help us think through this line between empty political theater and a deadly serious constitutional enterprise that should be taken seriously. And so I guess my framing question for you, I know you've been writing about this, is where do we put the nihilism that undergirds some of this? And where do we put, particularly, I think, a lot of folks who feel there's a real urgency to deal with COVID and to deal with the economy and other Biden priorities. So is this a colossal waste of time because the fix is in, or does it matter in some sense that we treat it very seriously?
- [49:21]
Bob Bauer
It does matter that we treat it seriously. And it does matter that the Senate still found time with all the public health and other problems facing the country, the public health emergency and the economic stresses associated with it, that the Senate found time for an impeachment trial? Clearly, in some respects it falls well short of what many would have liked to see, and that is a trial with witnesses and more extensive fact finding. The House managers, I thought, did extremely well with what they had to work with, which is the public record and the ample video documentation of what happened on January 6th. And I thought it was very important that the Senate take this up. And if in fact it turns out, as many believe it will, in an acquittal for want of 17 Republican votes, well, then it ends up that way. But there will have been been at least established a record of what happened here. Does it go as far as I would like to see it go? No. Were there practical constraints on the Senate's ability to do everything I would have liked to see the Senate do? Yes. And I don't think the outcome in the end, while it's not unimportant, is as unambiguous as it should be in sending a clear message about the kind of presidency Donald Trump Trump established, culminating in the events of January 6th.
- [50:41]
Dahlia Lithwick
We talked to Dan Goldman a few weeks ago in on this show and he it was almost a little depressing, Bob, because he said, at the end of the day, this isn't a legal proceeding. These jurors are compromised. These jurors, some of them are co conspirators. They're certainly at this point colluding with the defense counsel. And yet nobody's ever going to rule. Nobody is going to say, okay, the Senate took a vote, this is constitutional, that issue is off the table, move on. And so then you get this sense that there's no finality, there's no law of the case. There's just people's feelings about things. And I wonder if, I guess it's a two part question, Pat Leahy doesn't have the authority to issue rulings on any of this. He can't punish Republican senators who are not in the chamber. Right. There's no authority here.
- [51:31]
Bob Bauer
No. I mean, there's nothing to prevent a senator from leaving the floor or to sit there openly doodling on a pad or doing a crossword puzzle to exhibit contempt or boredom with the proceeding. There's really nothing that can be done about that. I suppose Senator Leahy could order the chamber back into, you know, some sort of discipline if there was shouting taking place or fisticuffs broke out. But short of that, no.
- [51:58]
Dahlia Lithwick
And that same answer on this question of constitutionality. Right. And if one thinks about this as a legal issue, the Senate has now voted it is constitutional, as it has done before, by the way, to try a former officer. It's not going to in any way affect the fact that Republicans will largely vote that this, this proceeding was unconstitutional and therefore nullify in some sense their prior ruling. There's nothing to be done about that either.
- [52:31]
Bob Bauer
No, I to call it, and I'm not sure in what sense Dan Goldman meant it, to call it a legal proceeding is correct in one sense, but a little misleading in another. I mean it's a constitutional process. There are law type procedures and law type arguments that are made. Council appear on behalf of the president. And the House managers, I think have been selected among the ranks of lawyers in the House, which I think there are a lot of lawyers in the House, just as there are a lot of lawyers in the Senate. But it is a constitutional process that necessarily involves the exercise of institutional and political judgments. They're just not cabined by particular legal doctrines or dictated by particular paths of legal reasoning. And so I think there's going to be necessarily some muddiness, if you will, some ambiguity. Does it matter? I think it still matters that the Senate voted the way it did. Does it confuse the outcome that individual Republican members will stand up and say notwithstanding the chamber vote, I am going to vote to acquit on the specific grounds that I don't think this proceeding is constitutional? Yes, that's going to muddy the outcome on that issue just as it did in the 19th century in the Belknap trial. Maybe the the only reassuring way to look at this is that impeachments do have an impact. They do have an impact. And the two trials of Donald Trump over the course of a single four year term will help define that presidency in a way that I do think will be significant. But again, I probably count myself among those who don't who wish it had gone farther than that for sure.
- [54:07]
Dahlia Lithwick
And can you just briefly, I can't tell how important it is and we've certainly avoided on this show going deep in the weeds of talking about Schenck and talking about Brandenburg and talking about legal standards of incitement because it's beside the point for impeachment purposes. It appears, and we're taping this on Friday afternoon, that the gravamen of the defense is this is all protected from free speech. Is it worth probing these deep questions about whether this was face to face incitement and whether there was imminent law. Is that a useful inquiry for your sense of what this impeachment is trying to do?
- [54:48]
Bob Bauer
It's useful, of course. Any violation of law is relevant to a decision that the House makes on impeachment and the Senate makes on conviction. The problem, of course, that it tends, and particularly in a society, is used to debating these questions, legally debating these questions in legal frames. It then tends to put into the background the larger constitutional question. And the larger constitutional question is what sort of speech has a president who has taken an oath, what kind of speech is permitted to that president? And that is consistent with the execution of that oath and the performance of his or her constitutional responsibilities. It is plainly untrue that the president has the same free speech rights as any private citizen. The president has those speech rights when he or she becomes a private citizen. But as president, clearly it is not correct that, for example, the president can defend on free speech grounds against giving a speech from the Oval Office in which, say, he declares that he is a white supremacist and that he plans to govern as a white supremacist, and that he will do what he can tend to shade policies or shape policies so that they reflect his belief in the superiority of the white race. That is an impeachable and convictable offense, clearly, even if that is an opinion that president holds, you know, as a matter of genuine conviction. So the problem, of course, with the. The legal line of argument is that it tends to move away from the constitutional context, and we should be evaluating what a president can or cannot say, and I think in that sense, can confuse the issue.
- [56:30]
Dahlia Lithwick
So, Bob, this brings me to the reason I really wanted to talk to you this week, which is you've been writing and thinking about this demagogic presidency and the ways in which the enduring harm of what Trump did was conflate really strange notions of limitless free speech with the Persona of president, with the performance of the presidency, and that that almost more than any one thing he's done, and I know this is building on Susan Hennessy's work and Ben Wittes's, the things that they're thinking about, but can you just lay out for me the argument about why this conversation you and I are having right now about the president and his speech is really a marker for you of what's dangerous about what we just saw and why we need to talk about it? It.
- [57:23]
Bob Bauer
Yes. No, of course, I'm happy to. The founders were extremely concerned about demagogues, and as you know, There was reference to demagogues in the first of the Federalist Papers and also a reference in the last of the Federalist Papers. And their understanding of the demagogue, which has been, I think, very beautifully captured in a book by Eric Posner called the Demagogues Playbook, is that a demagogue was a threat to Republican government and to liberty. Because a demagogue utilizes the tools of emotional manipulation and falsehood and lack of respect for institutions, all in the service of one goal, self aggrandizement. Which is also the reason why demagogues tend to cast doubts upon, and, given the opportunity themselves, rig elections because of the desire to hold, hold on to, and never relinquish power. But over time, what they do is they damage trust in institutions, and they do so again because they are looking to have the institutions serve them, not the institutions serve those that they took an oath to serve, in turn, the public. To my mind, this impeachment is about the kind of presidency, and this is something Ben Wittes and Susan Hennessy has written about, have written about. This is about the kind of presidency that Donald Trump sought to establish. And January 6th and the weeks leading up to it and the week leading up to it, as the House managers have made clear, and I think absolutely correctly, are critically important in understanding what the Senate is really voting on here. It was not a lapse of judgment on a single day. It was an onslaught against institutions. And, of course, it was Donald Trump's claim all along that he could, Couldn't possibly lose either in 2016 or in 2017, unless the election had been rigged against him. In this respect, he was true to his word. And this was classic demagogic behavior, corrosive of public trust in the institution, built on emotional manipulation, lies, and the vicious attack on the motives of political adversaries. And it is the sort of presidency out of which this event, event flowed, that I believe the January 6th event flowed, that I believe the Senate needs to pass judgment on in very, very clear terms. Because I don't disagree with Ben and Susan, that in some respects, even though no one ever has accused Donald Trump of being a political theorist, he is and has put up as an alternative to our standard conceptions of the presidency, this demagogic model, and, and there are others no doubt, ready to pick up the mantle and do what he did and perhaps do it considerably better with even graver cause to our institutions. And we need to do what we can to deter that.
- [60:11]
Dahlia Lithwick
So this is useful to me because I think I have very much Been thinking in terms of other, whether it's the rise of authoritarianism or liberalism or fascism. If you want to go there, the demagogic model is helpful because I think, at least as you've been writing about it and framing it, the problem with the demagogue is he's going to wrap himself in free speech claims, but then use those free speech claims, the claims about this is just my opinion, to actually shape reality. And then people who believe in him then believe in the things he says. Right? That's the problem, that's the move. And then to stand up and say, I'm being persecuted, and I know you pointed this out in some of the briefing, I'm being persecuted for unpopular opinions is a way of saying I can say anything I want and thus manufacture any reality I want and my believers will believe it and this all is protected. So this is the nexus between speech and authoritarianism that I think, think for me, this helps frame it as a constitutional question and a concern of the framers.
- [61:27]
Bob Bauer
No question his, his position would be, if you were to tease it out from him in this way, that whatever it is that he says is acceptable, it is true because he said it. He, the leader, his instincts are the measure of what is acceptable and true and that he can say it. And if he says it well, after all, he's a stable genius. He's somebody with these phenomenal, if you recall, at some point, overriding instincts about things and that he's therefore not only entitled to, but he has to. It's a character of his leadership that he spouts these lies and that he misleads the public in the way that he does. And behind it also, because so many of these falsehoods are directed against governing and institutions, is the view that he substitutes for those institutions. Those institutions have failed. They're rigged, they're corrupt. They need to be disregarded. In the same way that he attacked, say, the independence of the Department of Justice over the entire time that he was president and wondered out loud why he couldn't order up the prosecution of his political adversaries, he is saying, I, the person of Donald Trump, am the alternative to these institutions. And that is the self aggrandizement of the demagogue. It is how the demagogue styles his person as the object, if you will, of political worship. And so you hear on January 6, the mob repeating out loud through their bullhorns or in other ways, he told us to come. He told us we should be here. He told us Pence could do this. He told us that Pence was a coward. All of it a measure of truth located in what he himself chose to say in his own interest.
- [63:12]
Dahlia Lithwick
And so you wrote this week, and I think this is encapsulating what you've just said, Bob. The demagogic presidency and its threat to the constitutional order are also on trial this week. And so I think what you're trying to say is we have to repair this narrative that he is really, I think, entrenched that, that he can say anything. It's not performative, it's not connected to action, and it doesn't incite that. Absolutely. Every word out of his mouth is not only true, but even if it's not true, it's protected free speech. Because you're worried, I think you're hedging against the next person who comes along and does it better.
- [63:57]
Bob Bauer
Yes. I mean, there's every reason to think that. And this was also true of Donald Trump and his business practices as head of the Trump Organization. He didn't always surround himself, if you will, with the best of the best. And, you know, we're now down to the quality of legal representation that we've seen on display in the Senate. But somebody who comes behind him might very well be savvier, more experienced in government and in politics, have a better appreciation of what it takes to have the government brought to heel, if you will, and more subject to his presidential whims. And this trial now is at least one occasion on which the Congress can pass judgment on this on pretty gruesome facts, vivid gruesome facts viewed by Americans captured on videotape. Ben and Susan had hoped in writing their book that the 2020 election would be that verdict. But that didn't work out, because the demagogue, if you will, turn tables on everybody and began attacking the legitimacy of that election even before it took place. And so the election wound up being contested. He persuaded many of his followers that it was not legitimate. And so, really, the impeachment trial becomes even more critical as an occasion for an institutional judgment on the kind of demagogue presidency that he sought to establish.
- [65:22]
Dahlia Lithwick
And to the extent that, no surprise, the entirety of the defense, at least so far, maybe it will change over the day, Saturday, but the entirety of the defense is free speech. Fire doesn't mean fire. Theater doesn't mean theater. Fight doesn't mean fight. Wild doesn't mean wild. Stand back and stand by doesn't mean. None of this means the meaning that you and I would attach to it to the extent that that Is the defense, does it matter that he prevails on that? In other words, does the line move in the opposite direction of what you're concerned about? If the takeaway here is that of course all presidential speech, no matter how incendiary, how violent, is all protected, do we lose in a bigger way than just this impeachment trial?
- [66:18]
Bob Bauer
It's going to be a very murky outcome. He was impeached and then he was acquitted. Of course, it's very possible that some Republicans who vote to acquit him will put their rest their case on the so called unconstitutionality of convicting someone already out of office, a private citizen, quote, unquote. That's, by the way, I think incorrect too, but that's a different argument. And they might say at the same time that they say that I disapprove of how he behaved, I disapproved of what he said. Some of them have even said this should be left to the criminal justice process to address. So they may still create a record, if you will, of congressional disapproval in a broad sense, and a majority may well express that disapproval. But the headline will still read Trump acquitted.
- [67:07]
Dahlia Lithwick
I wonder if you thought there was anything new that came out in the House manager's case. And I'm really stuck on this moment where I think it became clear that the President knew Mike Pence was in physical danger, was being removed from the chamber. While he was tweeting out, he continued to tweet out incendiary rhetoric about Mike Pence. I guess I wonder if more needed to be made of the fact that not only that Donald Trump sort of lit the match and pointed the protesters at the Capitol, but that he, he really did nothing to stop it. And now we seem to have this cherry on top which is in the fullness of knowledge that his vice president and Nancy Pelosi were in danger. He didn't stop. Does that matter?
- [67:59]
Bob Bauer
I think it matters a great deal. I don't think it looks like it's going to change anything right now. The Tuberville admission that he told the President the Vice President was under attack were all being evacuated, which I take it he also understood. Although Mike Lee is saying he doesn't want to discuss the content of the phone call, he may have also expressed the heard the same from Mike lee. And then 11 minutes later, I believe it was, he's out there tweeting yet another attack which is being faithfully circulated within the mob that's surrounding the Capitol. So do I think that matters? It absolutely does matter. The fateful choice that was made, and there were reasons why it was made, was not to collect additional evidence about what was taking place on the inside of the White House. Those who knew, for example, as press reports indicate, and could testify that he didn't understand why people weren't thrilled with this attack on the Capitol. He'd been looking for a way to delay this or disrupt this process. And lo and behold, it was happening. The process was being disrupted and the electoral vote count proceeding was suspended. And I was thinking earlier, earlier today, it's interesting, we have two tapes cases, the Watergate tapes case and the Trump tapes case. The Watergate tapes capture what was taking place on the inside. The Trump tapes capture only what we could see on the outside. And I think in that latter case, that tells you a great deal of what distinguishes and, and I think creates real problems for this impeachment process.
- [69:27]
Dahlia Lithwick
And we don't need evidence of his state of mind. As you said at the beginning, this is an a criminal prosecution. We don't need to know what he was thinking, which is why those outside tapes are sufficient, I suppose. We need to only know what was happening. And so I guess it's. I'm just thinking about Nikki Haley excusing away Donald Trump. It almost doesn't matter for our purposes whether he knew in the moment that he was making it worse. Right.
- [70:00]
Bob Bauer
You mean it might not make a difference because we see what happened? Well, I certainly think that what we see, what happened, what's on tape on the outside, is convincing enough for my purposes. I do think in something this important, a complete factual record, and perhaps one that could persuade the unpersuadable right now would make a difference. And so let's assume that a White House aide testifies. Think about, by the way, in the Nixon case, you know, John Dean or Alexander Butterfield, a Trump aide testifies that he was told that Pence had to be whisked out of the building and the proceedings suspended because of the mob attack. And Trump replied, great, exclamation mark. Do I think that's an important piece of evidence? Absolutely. It goes to state of mind. And as you say, that may not be necessary, but it also is objective evidence that he fully understood, as I think he did anyway, what was taking place, and he fully favored it. I'm not suggesting, by the way, that we have any evidence that he wanted to see Mike Pence murdered. If he wanted the proceedings to be ground to a halt, that was the delay. Rudy Giuliani and perhaps others were calling around that day looking for ways to persuade members to slow the proceeding up. And this is what he wanted to have happen.
- [71:12]
Dahlia Lithwick
And the decision not to call witnesses, not to press further on what he was doing in those hours at the White House, that was just an expediency decision. Right? We got to do this quickly. There's other priorities. We can't spend weeks trying to find this. In other words, I guess the sense was you could have all that evidence, you could take six months, and you're not going to get those 17 votes. Right?
- [71:34]
Bob Bauer
You're not going to get those 17votes. And then this goes again to American trust and institutions. There are people who are really suffering. Thousands, thousands dying a day, hundreds of thousands since the fall. Huge economic disruption, parents struggling with students out of school. And there was going to be limited public tolerance for this fight.
- [71:54]
Dahlia Lithwick
What's your best advice, Bob, for how to, if we can't put Donald Trump on trial in the Senate, to talk meaningfully about what the senators have done. In other words, to deflect this in a conversation, converse into a conversation about the senators. And I'm thinking specifically of all the frantic emails I've gotten in the last 24 hours saying, can't they do a secret ballot? Can't somebody punish, you know, the senators who aren't there? How do we make manifest that this is, as you and I said at the beginning, a deeply serious enterprise that's not being taken seriously? Is there any way to effectuate that message other than just have the managers put on a strong case and have Bruce Castor get up and speak in tongues?
- [72:46]
Bob Bauer
What happens after the impeachment trial, I think is also important in that respect. If the impeachment trial is not going to represent a decisive verdict on this kind of presidency, then there are other steps that need to be taken to reflect an awareness that this can't happen again. And that would include some important institutions, constitutional reforms of the presidency, to build in safeguards against presidential abuse of that institution. I do think there may be an attempt to censure the president, former President Trump. And I, I don't think that's useless. Now, people point out that when Jackson was censored, his people came in, when the Congress, his composition changed and uncensored him, if you will. So that's a moving target. But on the other hand, I think it's important that at the time there be a clear statement that this conduct, and it can be, by the way, strongly worded, I mean, very, very strongly worded that there be a statement like that could be useful. But I think the long, the critical step, from my perspective, are these longer term reforms to just protect ourselves from someone like Donald Trump in the future. And for some of that, I do think there is bipartisan support, whether it's conflict of interest regulations so that someone can't run both a government and a business at the same time. And that includes the disclosure of tax returns or the depoliticization of some of the presidential exercises of the pardon power or safeguards of Department of Justice law enforcement independence. I mean, there are things that couldn't be done that will stand in the way of the sequel to Donald Trump if we're unfortunate enough to have it.
- [74:19]
Dahlia Lithwick
So I think that leads me to my last question, which is how sanguine are you that we're not going to get the next Donald Trump? How? How? As compared to, say, I know you're up to your ears in the election litigation, but has the lesson taken hold that this is deeply, deeply toxic and problematic, that the institutions are not as strong as we thought, that the institutions rest on a lot of good faith and goodwill? Even the institution of impeachment itself is bound up in a lot of thinking about how senators should conduct themselves after they take an oath. So knowing what we now know about how fragile some of this is, are you 80% confident, 90% confident that institutions can be bolstered in the coming years, or are you? I don't know. I think I'm just a little glum from having watched eight hours of impeachment for a couple of days. But is the next one one to come going to be the kick in the face Donald Trump version 2.0 that's really smart, well organized and able to.
- [75:29]
Bob Bauer
Wreak havoc, it's something to worry about. I don't think we can discount the possibility, especially if the public concludes, and when I say the public, a substantial portion of the electorate concludes that for reasons and of course, that's where a lot of conspiratorial thinking enters in. The institutions of government are just consistently failing them. And if government consistently fails those expectations, we're going to have conspiracy theories and we're going to have people gravitate to the strong man or woman who says, you have to depend on me because those institutions have failed you. They failed you because they never cared about you. They failed you because you're in the grip of other interests that are willing to seize all the goodies and deny them to you. I'm your hope. Or to go back to the convention when Trump said, I am your voice, I'm the only one who can fix it, I, I, I, I which is an appeal when people lose confidence in the collective we. And so I don't think that we should be sanguine about this at all. By the way, you've mentioned elections. So I'd like to say one quick thing about elections. We have to be serious. Not just, you know, the reform of the institutional presidency. There are also reforms of other governmental institutions that I think could make a difference. There are congressional reforms, for example. The Congress, you know, is certainly not functioning the way people would like it to. But consider the election administrative machinery in the United States. We talk about the right to vote and how very important it is. The electoral infrastructure in this country almost collapsed in the spring of 2020 under the pressure of the pandemic. It wasn't salvaged by government intervention. It was salvaged by heroic efforts by individual election officials and by voting rights and other advocates and by an infusion of private resources into jurisdictions that were really struggling to put an election on hundreds of millions of dollars of non public but public spirited money. We don't take the electoral process as seriously as we should as a fundamental question of building that, that structure up so it really serves the voters reliably. And that's a conclusion that I reached and that we reached on a bipartisan basis on the Presidential Commission on Election Administration that I served on the President Obama set up in 2013. And we're still struggling with that and we shouldn't have to.
- [77:51]
Dahlia Lithwick
And it's interesting because it's worth saying, as you and I are recording this, there are vote suppression efforts going on around the country. Right? There is a, a redoubling of enthusiasm for exactly the kind of, you know, in addition to the rickety election structure that you have described and that you deplore. But there's also a really, I think, manifestly terrifying effort to constrict the vote and that we can say all we want, hey, you know, we have record turnout and people showed up in a pandemic and vote by mail work. But the lesson lesson is not a bipartisan lesson necessarily, that encouraging broad, widespread expansion of the franchise is the lesson of 2020. It's quite the opposite.
- [78:37]
Bob Bauer
Yes. Although I do want to say one thing for the election officials, even on the Republican side, and I wouldn't, I won't, I shouldn't even say even on the Republicans, I'll say on the Republican side who, many of them around the country really stood up at the end and they delivered voting to the electorate. It and they stood by the results and defended them against enormous amounts of political and personal pressure. But, yes, you know, you're quite right. We're now dealing with a wholesale effort to revise rules that are intended to restrict categories of voters, limit voters, inhibit voting in the interest of narrowing an electorate so that one party can do better than the other at the polls. And there's a long, sorted history of that in the United States. This is not the first time it's happened, but it is something that just needs to be very, very carefully followed and resisted at every level.
- [79:31]
Dahlia Lithwick
Bob, thumbs up, thumbs down. This impeachment effort, although experienced by some Americans as a distraction and some Americans as vengeful and some Americans as tearing the country apart, was worth it, in your view. I'm hearing you say this needed to be a marker of something, and even if it was brief and even if there were no witnesses, this is something that needed to be done in this moment, in this way. That's what you're saying?
- [80:02]
Bob Bauer
Absolutely. I think it would have been a horrifying abdication of congressional responsibility to have bypassed the impeachment process entirely. Originally, the House was wanted to rush it just to get Trump out of office before he could do any more damage, before the conclusion of his term. The House was correct to do that. It didn't turn out that the Senate could take that up before Trump left office. But I think it is absolutely in the public interest, critically important that a record be established and that this argument over this presidency continue with what we have seen as a record produced through this impeachment process.
- [80:41]
Dahlia Lithwick
Bob Bauer is co author with Jack Goldsmith of After Reconstructing the Presidency, which was published this past summer. He served as White House counsel to President Obama. He's a professor of practice and distinguished scholar in residence at New York University School of Law, as well as the co director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as as a senior advisor to the Biden campaign and he will co chair Biden's commission to study reforms to the Supreme Court. Bob, I could just book you on the show every week for the next six months and I would have good questions for you. But I am so, so deeply grateful to have you help me think through this impeachment, which was, I think, as we agree, singularly important and singularly maddening at the same time.
- [81:29]
Bob Bauer
Thank you very much. I really enjoyed the conversation.
- [81:37]
Dahlia Lithwick
And that is a wrap for this episode of Amicus. Thank you so much for listening in and thank you so very much for your letters. And your questions. You can keep in touch@amicusatslate.com or you can always find us at facebook.com amicuspodcast Today's show was produced by Sarah Burningham. We had recently assistants from Daniel Maloof. Gabriel Roth is editorial director, Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcasts. We'll be back with another episode of Amicus in two weeks.