← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Impeachment Question
00:42:43
It’s a possibility, but should it be a goal?
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- [00:06]
A
If we want to be coherent in complaining that we have a president who has no respect for the Constitution, then we have to take seriously the design of that Constitution. It's not designed to remove a president just because we become terribly unhappy with his values.
- [00:32]
B
Hi and welcome to Amicus, Slate's podcast about the courts, the Supreme Court and the rule of law. I'm Dahlia Lithwick and I cover many, if not most of those things for Slate. And this week the Supreme Court handed down a very big deal of a ruling in an employee rights case, epic Systems Corp. Vs. Lewis. In its 5 to 4 decision delivered Monday and authored by Neil Gorsuch, the the majority ruled that companies can use the arbitration clauses in employment contracts to bar their workers from banding together to take legal actions over all sorts of workplace issues, including wage theft, sexual harassment, or discrimination based on race, gender and religion. Now, Justice Gorsuch rooted his decision for the majority in a very narrow reading of the Federal Arbitration Act. The practical effect of this ruling will just be to make it harder for workers to get out from under their mandatory arbitration clauses. And these are relatively new arrangements. In 1992, only about 2% of non unionized employers in the US used these clauses. Today, more than half of them do. This week's ruling could affect some 25 million employment contracts nationwide. Justice Ruth Bader Ginsburg, writing for herself and the court's liberal wing, wrote in her dissent that Gorsuch's analysis was, quote, egregiously wrong. She noted that employees rights to band together to meet their employers superior strength would be worth precious little if employers could condition employment on workers signing away those rights. Now, to the extent that this confirms the sense that the newest justice is going to be unlikely to side with workers against their bosses going forward, this case is not surprising. This may also telegraph where the Roberts Court is headed on the other blockbuster labor case of the term, Janice, that was argued in February and covered in some depth on this show. We'll have more on Janice and the other cases that are going to start tumbling from the skies in the coming weeks. As the decisions come down, we wanted to turn today to a topic that seems to be generating an enormous amount of listener mail and interest, and that is this question of impeachment. As the news becomes ever weirder and Donald Trump's lawyer announces that truth is just relative for purposes of the President. And Donald Trump spent the week announcing an all out war with his own Justice Department. A lot of listeners are writing in to say, is it time yet Mom? And while it's tempting for those who are worrying about the rule of law, separation of powers to turn their eyes to the holy grail of impeachment. Professor Lawrence Tribe, writing with his former student Josh Matz, has just released a book cautioning against that kind of fervor in To End a Presidency. Professor Tribe and Joshua Matz raise a warning about the seriousness of that enterprise. Lawrence Tribe is probably one of the country's foremost Constitution constitutional scholars, and I think I speak for an awful lot of lawyers when I say that. Back when I was in law school, I just thought he lived under a glass cover and wrote case books. But he's a real person. He's been one of the most vocal constitutional thinkers in Twitter and television and print since the Trump era began. And so I'm just delighted to have him finally on the podcast today. I'll note that Joshua Metz was supposed to be joining us, but he had to be in court, as sometimes happens with constitutional lawyers. We'll have him back soon. But, Lawrence Tribe, first and foremost, welcome to the podcast. It is just a privilege and honor to have you on the show.
- [04:05]
A
Well, that's. That's mutual, Dalia. I'm definitely a huge fan, and I'm happy to be here.
- [04:10]
B
I think we need to start with the news of the week, and that includes the President's declaration that his own Justice Department planted a spy in his campaign to frame him to go further and plant evidence in an attempt to throw the election to Hillary Clinton. Let's put aside the political valence for a minute and just tell me, Larry, as a legal matter, what does it mean when the president is involving himself in his own investigation, is having meetings with Rod Rosenstein to supervise the investigation and calling out the investigators to investigate themselves? Is this unprecedented beyond just the world of norms? Is this a legal crisis to you?
- [04:52]
A
I think it is a legal crisis. It's certainly unprecedented to have it done in broad daylight. I mean, Richard Nixon at least had the taste to be hiding when he directed the FBI and the CIA to help cover things up. But we now have a president who does so many things that are quite explicitly obstructing justice right out in the open that we get used to it. The great danger is that something that is so profoundly abnormal, something that involves abusing the powers of the presidency to dissolve the rule of law and to put oneself above the law, happens with such extraordinary frequency that it begins to seem normal. And it's the normalization of outrage, the normalization of the very edge of tyranny that I'm most afraid of it seems to me that we really are in a situation of extreme crisis, but it doesn't mean that any and all tools that are there to break out of the out of the glass box and use in case of emergency are going to work. We have to be strategic and thoughtful about how we use powers like the.
- [06:07]
B
Power of impeachment before we get to impeachment. I want to I think the other you note this in the last chapter of your book that the other place that we do a lot of magical thinking is around the Bob Mueller investig. And you note in the book, you know, that's another one of those wait and see, my children. Wait and see. But what do you make of what is increasingly sounding like the Mueller team telling us they're going to abide by the Justice Department's general guidance that presidents cannot be indicted while in office Whatever they turn up, I think that's the way they're going, or they're signaling that if that proves to be the case, what will be the utility of a Mueller investigation if he does discover wrongdoing?
- [06:51]
A
Well, first of all, I don't think we should assume that just because Rudy Giuliani claims to be channeling Mueller and knowing that he is going to follow those guidelines, which are only guidelines, and which are not bound into the Constitution, we shouldn't treat that as truth. It is likely that Mueller will indict whole groups of people other than the president himself. But the evidence accumulated against this president, and I suspect there's plenty, both in terms of working with Russia and in terms of selling out the country and so on, that evidence doesn't evaporate. It's not like Cinderella turning into a pumpkin or something. It is there for prosecuting this guy when he is out of office. And unless he is pardoned by his successor in the way that Ford pardoned Nixon, justice will in the long run prevail. But even in the short run, the accumulation of evidence, even though its revelation to the world and to the country is not going to operate like a magic wand that suddenly turns all sorts of people who have tasted the Kool Aid and seem to follow it wherever Trump wants them to go, that they will suddenly see the light and appreciate a different kind of truth. It does mean, however, that other measures can be used against this president. As more and more information comes out, the odds that the House will be in Democratic hands in November obviously go up. That means that genuine oversight, genuine surveillance, not Devin Nunes style surveillance, can take place. The subpoena power can be used to. To expose wrongdoing and to figure out how to prevent its recurrence. It's not only that by cooperating with various countries that will make him richer and compromising our policies with respect to those countries. It's not only that those are such terrible wrongs that the President should be punished. It's that they have to be stopped in their tracks. We have to prevent their recurrence. And unless we do engage in genuine oversight and design better ways of protecting ourselves against cyber attack by hostile foreign powers and against manipulation of the voter profile, against the use of Facebook and other social platforms in order to undermine our democracy, unless we build a wall, not the kind of physical wall that this president is so excited about on the southern border, but a wall against cyber attack, we're going to be in terrible shape. And that's one of the things that so scares and bothers me about what the President is doing with his Spygate fantasy. That is the use of informers to follow up when evidence appears that people in a presidential campaign are colluding with foreign powers to subvert democracy. The use of informers in that situation is every bit as standard as the use of informers in dealing with organized crime and with racketeering. There's nothing bizarre or nefarious about it. I mean, what would one expect if people like Papadopoulos or Roger Stone or somebody else are bragging about their being not only identified as advisors to the President, but in a bar somewhere saying they've got all kinds of dirt on the then candidate's opponent, Hillary Clinton, and are working with Russia to get that dirt? Would you expect an FBI that's doing its job not to seat someone at the bar next to the guy who's bragging and win his confidence? That's all that was going on. But this president is so immersed in spying on his enemies and facilitating Russian spying that in his standard way of projecting, I think he wants to call it Spygate. And he's very good at coming up with monikers that obstruct and obscure thought. And in doing all of that, he is really weakening the country. And we can fight back in so many ways. Other than impeachment, though, impeachment remains a possibility. I would never want to take it off the table. I just don't believe. And our book explains why it's not the case that talking endlessly about impeachment really gets us anywhere.
- [11:53]
B
Can I ask, before we turn to your book, I want to ask one other question about magical thinking. It's something that I've been wanting to ask you for a few days now. Is the corollary to Democrats saying impeachment, 25th Amendment, Mueller, impeachment, 25th Amendment, Mueller. Is the corollary on the Trump team to keep saying collusion, collusion, collusion, as though there's something magical about the term collusion. And I say this as a purely sort of factual legal matter. Collusion isn't actually a thing. Whenever Trump or Giuliani says there's been proven no collusion, that's not the totality of the Mueller brief in the first instance. So why hang on to the notion that we've been cleared of collusion, therefore everything is gone. Is that a deliberate distortion or am I misapprehending something?
- [12:45]
A
No, I think it is a deliberate distortion. But I think the which C word one uses, whether it's collusion, conspiracy, cooperation, co optation really doesn't matter as much as the fundamental question of whether this guy abused the system in order to become president. The way James Clapper argues in a recent book, Facts and Fears Actually Happened. Clapper makes a strong case that but for Kremlin directed intervention ordered specifically by Putin, Donald Trump would not be president. Now you can. And the fact is it wasn't a passive Donald Trump. There were people around him, and maybe Trump himself who were facilitating that. Now it doesn't really matter what little label you put on it. That is clearly an abuse. It was the kind of paradigm thing that the framers worried about, that a foreign power would plant someone in the presidency, that someone would bribe his way into the presidency or would sneak in and be an illegitimate president. We should remember that the question about Trump is not simply the question, has he committed a technical violation of an anti conspiracy statute or of the obstruction provisions of 18 USC? I mean, that's lawyer talk. And yes, I'm a lawyer, though not in the pejorative sense, I would say. But it seems to me that the issue for holding a president accountable to the law and to the rule of law, whether through impeachment or through oversight or through grassroots movements that call out abuse of power when it's seen and work to limit it, that's quite separate from the issue of criminality as such. So the obsession with criminality really misses the point of holding the president accountable and pushing back through everything from congressional oversight. If we finally elect a Congress with spine to grassroots movements of the kind that I was excited to see Both with the MeToo movement and with the March 24th student movement, the uprising around the country against lawlessness in the name of law is very powerful. And whether or not a specific crime has been committed is relevant for the people that Mueller is going to indict around the president. And he's already handed down many indictments, gotten various guilty pleas, and so on. But the real question of abuse of power is not limited to criminality. If the president, for example, he didn't commit a crime when he pardoned Arpao, but it was a clear abuse of the pardon power, he wasn't showing mercy. He was tying himself together with a lawless racist and basically sending signals to other people that, I'll have your back no matter what you do, as long as I like it. When he pardoned Scooter Libby, that wasn't a crime, and it probably wasn't obstruction of justice under 18 US code, but it was part of an overall pattern of obstruction of the sort that would be relevant in an impeachment proceeding if we get there. And it's relevant in terms of public discourse, as long as we don't so saturate ourselves with impeachment talk that we both blow the chance to take over the House of Representatives and in November, because everybody will say that all you want to do is take this guy down and not do anything positive for us. And it, in fact, is like crying wolf. I mean, you can't use the power of impeachment against a given president more than once when it was used against Clinton in obviously improper ways, that is, it was used because he had perjured himself about consensual sex with an intern, not an abuse of presidential power. The net result is that he was vindicated in the Senate. He emerged with the highest popularity numbers he'd had in a very long time. He was emboldened. He was strengthened. So we really shouldn't confuse criminal indictments and the technical requirements of them with what we ought to be talking about in terms of the way this president has normalized the abnormal and essentially moved us closer to tyrannical rule.
- [17:27]
B
So that's actually a great segue to, I think, the central argument of your book, and I think I agree with it. David Frum at the Atlantic did a glowing review this week where he also agreed with it. And I think that the point, correct me if I'm wrong, Larry, it's almost a tactical conclusion, what you're saying. I've made this point about people putting too much hope in the Mueller basket, that it's a way of saying this superheroic thing is going to happen and we're all going to be safe again. And I think that in addition to saying people need to be their own superheroes, activate themselves as they did, you just mentioned MeToo and Parkland. And I think you're also saying, look, this is going to unleash the language you use is national trauma. And I think you make the point pretty explicitly. I'm just going to read a section because I think what you're saying is that tactically this doesn't redound to the benefit of Democrats. So the section I want to read is where you say, quote, were Trump removed from office by political elites in Washington, D.C. even based on clear evidence that he had grossly abused power, some of his supporters would surely view the decision as an illegitimate coup. Indeed, some right wing leaders have already denounced the campaign to remove Trump as a prelude to civil war. This rhetoric, rhetoric too, escapes reality and indulges pernicious tendencies toward apocalyptic thinking about the impeachment power, end quote. I think what you're saying, and I just want you to bear down on this, if it's true, this is a tactical problem. They're going to go bananas. We are going to lose the House in November. And so it's not necessarily a moral or legal argument to say we're not there yet. We could be morally and legally there. But you're saying this is going to come crashing down and harm us, us more than we think. Am I oversimplifying?
- [19:25]
A
No, I think you've got the point. And certainly what you read is what I wrote and believe. But it's a little deeper, I think, than that. The point is it's not just tactics. There really are matters of principle involved here. One principle is that magical thinking is unhealthy. It's not good for us, that is dreaming in a kind of fantasy land way that somebody will rush in a white knight on a white horse or whatever it is and save us. Really misses the point that only we can save ourselves. It's we the people through this crazy electoral college system that we have. But that's the system we have. It's we the people who put this man in power. The forces that led people to tolerate 60 million of them, to tolerate this kind of depressing discourse, this nastiness, this vengeful ripping apart of American institutions and of our traditions. Those forces are not simply going to go away by waving a magic wand. We really should realize, and one of the lessons of the book is not just as a matter of tactics, but a matter of facing reality and truth, that there is no deus ex machina clause in the Constitution. There's nothing that will save us from ourselves. Impeachment is an important power, but it's part of a larger panoply. And the idea that as long as we could get away with it, we can just do it the way Gerald Ford once said, you know, in connection with William O. Douglas, that high crimes and misdemeanors are whatever the House of Representatives say they are, well, that's just not true. That is, if we want to abide by the Constitution ourselves, and if we want to be coherent in complaining that we have a president who has no respect for the Constitution, then we have to take seriously the design of that Constitution. It's not designed to remove a president just because we become terribly unhappy with his values. I mean, we've used the impeachment word quite inappropriately at times in our history. Tyler was subjected President John Tyler, to impeachment resolutions because people thought his policies were too out of sync with Congress. He vetoed too many bills. There were impeachment resolutions against Thomas Jefferson on the ground that he really was dragging his feet too much before appointing someone to head the port of Boston. We shouldn't use the impeachment power to express dissatisfaction with the president. We should apply what I see as the shoe on the other foot test. That is, if we really liked this guy's policies, if we liked the way he sort of tacks back and forth and is inconsistent with respect to North Korea or something else, would we still believe that he should be impeached? That is, if. If it were somebody whose values and policies we shared, would we be able to conclude that the person had so abused the powers of office that it just is too dangerous to the Republic to let that person stay in power. Now, the really hard problem occurs when maybe 40% of the people are convinced that that's true and can point to acts of kleptocracy or obstruction of justice or abuse of the First Amendment or even the illegitimate acquisition of office to say that this person is unacceptable? What happens when there are tens of millions of people who just aren't convinced we have such deep rifts in the country, exacerbated by the tunnel vision of social media and by tribalism, that if it really could be that we just can't persuade enough of our fellow Americans that this person is in existential danger, what do we do then? Well, it seems to me that to say, well, we just have to be true to ourselves and go ahead and impeach no matter what the results will be. Even if we know that there aren't going to be 67 senators to acquit, even if we know that the person we impeached is going to run around and claim victory, saying, again, no collusion, no obstruction. See, I was acquitted. It just doesn't make sense. It's not just that it's silly tactically. It's just not the way the system is designed. We don't have a parliamentary system for getting rid of somebody that we regret having put in power.
- [24:08]
B
I want to take a moment to talk to you about our membership program, Slate Plus. If you are hearing this, you are listening to the regular version of our show, which is great. But if you sign up for Slate plus, you can romp through the whole show commercial free, and you get access to all sorts of bonus segments and extended versions of your very favorite Slate shows. It costs about $35 for your first year and you can sign up for free for two weeks just to check it out first. Oh, and one more thing. You've heard me say it before, but by signing up for Slate plus, you are supporting this show and you are supporting all of our journalism here at Slate. And we know you value our journalism at Slate, and you know this work is urgent now more than ever, and we need your help. So sign up for Slate plus and help secure Slate's future. To learn more and to begin your free two week trial, go to slate.com amicusplus and we are back with Lawrence Tribe, professor of Constitutional Law at Harvard and co author of the new book To End a Presidency, the Power of Impeachment. So I think a cynic would say, or a doubter would say, but, Larry, the constitutional language is deliberately vague. Certainly it's clear, and I think you note this at the outset of the book, that a lot of scholarship around the impeachment question grapples with the vagueness, but finding a workable standard. It's a lovely notion, but the Constitution talks about treason, bribery or other high crimes and misdemeanors, and trying to map the litany of things you've just described. You know, the emoluments, violations, the threats to the First Amendment, firing Comey, threatening to fire Mueller, whatever you might want to put in that bucket, certainly looks like it could meet that standard. And I think what you're telling me, and I think there's a whole bunch of analysis in the book, is that actually the Constitution isn't as vague, the framers weren't as vague as that language looks to be. Right?
- [26:14]
A
Right. I mean, we conclude that all of the obsession over what is exactly a high crime and misdemeanor is asking the wrong question. It's a tough question, but it's not unanswerable. There are places, actually a few American states, like, I think, Massachusetts, New Jersey and Pennsylvania, and some countries like Nigeria, Palau, Russia, Sierra Leone, that do leave it so vague that you can just fill in the blanks. I mean, they allow impeachment of the top dog in the executive for misbehavior, misconduct, maladministration. We don't have that kind of problem. Then there are other places that pin it down specifically to crimes and constitutional violations. Argentina, Germany, India, I think Poland, South Africa. We haven't done that either. But we have provided enough guidance by identifying the kinds of things, bribery and treason, that are clear examples of high crimes and misdemeanors. And the real problem isn't to figure out whether he has committed one of them. I think as the evidence comes in, it will be very clear to people who are willing to look at that evidence that he has. The problem is what to do with that. The Constitution does not say or even imply that whenever a president has committed a high crime and misdemeanor, he must be impeached and convicted. Quite famously, Senator Byrd concluded that William Jefferson Clinton had committed a high crime of perjury and obstruction of justice. But. But nonetheless, he announced in the Senate that he would exercise his discretion not to vote to convict and remove. I think I can imagine senators concluding that with respect to Trump, they'd have a hard time saying that obstruction of justice is not a high crime and misdemeanor, although many of them, I'm sure, will say it. But they will say, not a good idea to remove him in such a perilous world. Terrible idea to disenfranchise millions of our fellow Americans. What our book does is try to provide a frame of reference for the whole series of questions. Beyond the initial one of what's a high crime and misdemeanor? How does the President handle an investigation of his own wrongdoing? Well, we're learning a lot about this president by looking at that question. How does a president respond to an impeachment proceeding in the House? If the Democrats win, even though they want to say that they're not going to move to impeach him right away, the odds are they might. And how the President reacts to that will inform what the Senate should do if he is impeached. And the question of whether an impeachment will Generate a backlash that's even more dangerous and deadly than what we have to begin with. That's a judgment call. It's not one that any form of words like high crime and misdemeanor can help us answer. There was so much debate at the Constitutional Convention about where the impeachment power should be lodged. I mean, they examined every possibility. They thought of putting it in the Supreme Court. They thought of giving it to a council consisting of the chief justices of all the state supreme courts. They thought of giving the power to another kind of commission or council. They ended up giving it ultimately to the House of Representatives, thinking that the House would end up picking most of our presidents because they anticipated that the Electoral College wouldn't pick a clear winner very often. Boy, were they wrong. But in fact, the House occasionally does play that role. They thought the people's House would pick the president. The people's House, therefore, would not be too undemocratic in deciding that if he had committed a high crime and misdemeanor, he really should be impeached. And then the Senate, though it wasn't representative of the people, was a kind of sober second look, which, under the supermajority rules, would only remove a president if it really made sense for the country. That design is one that can give us some guidance, but we try to come up with a frame of reference for what are the things that make impeachment a wise thing to do and conviction and removal a wise step once you've crossed the threshold of a high crime and misdemeanor.
- [30:44]
B
In Jeff Toobin's piece this last week in the New Yorker, he talks about impeachment and the exact impeachment talk, impeachment frenzy that you write about in the book. And one of the things that he notes is that polling is now showing that about 42% of Democrats would actually favor any candidate running on the impeachment platform. That people like Tom Steyer, Gavin Newsom, people out there saying, it's time, let's do it now, are actually pretty salient with a huge number of Democrats. Are we working our way into a kind of civil war over the impeachment issue where Democrats are going? I know Nancy Pelosi has strongly taken the position that you're advocating. You know, this is. This is not a process that we should be thinking about right now, but are we going to get ourselves into a position where Democrats are fighting Democrats about whether impeachment is the only solution?
- [31:39]
A
I guess the true answer is, yes, they're going to be fighting. I'M hopeful, though, maybe this is fantastic thinking that our book could make a difference. If the national conversation really focuses in a more informed and thoughtful way on what the impeachment power really is, what the pros and cons are, how you really have to navigate a very difficult stream between Scylla and Charybdis and order to decide when to use that power, then maybe the Civil War would chill out just a little bit. Right now it doesn't look very good when some Democrats are easily understood by others to be saying, of course we're for impeachment, but we have to whisper that because we don't want the people to know that that's part of our agenda. That's not going to be a very persuasive argument. If the argument is, this guy is terribly abusive, but we have positive things to do for the country and it's premature to talk about what to do about the President. There are all sorts of things that could be done to rein him in. If we have Democrats in power, that may not be at the top of our agenda, though we will believe in a way that he doesn't in protecting the country from cyber attack. But we have a very positive agenda and we have to wait to know more. I mean, something like that that might actually sink in would be helpful. And obviously the more people read and talk about our book or any other that takes a similar view, and there really aren't that I'm not aware of others that really develop the argument that might help. Although I guess every author is guilty of that kind of fantasy. I'll wake up on the bestseller list and the conversation will have been changed. Although maybe your program, Dalia, will help.
- [33:25]
B
We aim to please. Although I think I have a follow on question, Larry, which is you undertook this book, you and Joshua Matz, in part because I think you felt like people just don't understand what impeachment is for. And you've cited now, you know, people think impeachment is for. I just don't like the guy. People think impeachment is for, you know, lied about sex with the intern.
- [33:46]
A
Right. Or getting rid of Gorsuch. I mean, I get so many tweets saying, well, when we do it, will we get rid of all of his terrible judicial appointments? Will we turn back the clock? Will we go back to zero? And of course that's not what it does.
- [34:00]
B
I guess I'm. I'm asking if you can help me. If you could say one thing. Impeachment is not X America. Impeachment is Y and everybody who's listening should run out and buy your book, regardless. But I wonder if you could give us the elevator speech on what folks get wrong when they think about this question, especially as they try to decide where to align themselves on the political. You know how I'm going to feel about candidates that are going to take a stand on this. What are folks misunderstanding? Larry?
- [34:33]
A
Almost everything. I mean, it's so hard to A lot of people think impeachment gets rid of a president. It doesn't. It only moves to a Senate trial, a grand inquest. A lot of people think that impeachment is all about whether or not the president has committed a crime. That's not what it's about. A lot of crimes aren't impeachable. This guy's probably committed tax evasion, you know, up and down the line. And none of that is impeachable. And a lot of things that aren't criminal are. People tend to think that impeachment is purely political and there's no relevance to what the Constitution says, and that's surely wrong. If we move in that direction, we're going to hurt our country for generations. A lot of people think that impeachment is a purely legal process. That's not a commonly held myth, but it's a myth nonetheless because it's obviously intricate mix of law and politics. It's simply a word that people use as a kind of translation for I don't like the guy. I wish he hadn't won. He didn't win the right way. I don't like the Electoral College. He lost by 3 million votes. So of course we should get rid of him. That's just not what it's all about. What it is about is identifying in a bipartisan way a circumstance in which we have elected a president who endangers the survival of the republic and who endangers what the nation will be if it does survive. And if we can seriously talk about that question, then I think we will have learned something.
- [36:14]
B
And yet you've just identified all the ways that this isn't something that begins and ends with Donald Trump. You've talked about a polarized media. You've talked about complete inability to persuade across the aisle. You've talked about, and I think it's true, huge mistrust. If anything, we've learned that the mistrust of the state itself, of government itself, is at levels that neither you nor I could have ever predicted. Mistrust of the judicial system, mistrust of the existence of verifiable facts. Those are not Trump problems. If Trump were to be gone, those would still be problems. And in a way, I think one of the things that's so interesting about the book is it says, look, you know, the solution for this is politics and organizing and thinking, or at least the solution isn't impeachment. What, what is the solution for these problems that go way beyond Trump himself? If Trump were gone tomorrow, none of those other things are cured, Larry.
- [37:15]
A
Well, that is the deep problem, and it's a deep question to which we offer only hints of an answer, that is organizing, thinking, respecting people who have dramatically different points of view, working on the architecture of social media, increasing the likelihood that people will automatically encounter views that don't just reinforce their own. There are solutions in the high tech world to some of the tunneling problems of social media. But the real difficulty is this deep chasm of mutual mistrust. It's grown over the years. It's come to the point where people really think that those who have a different view of what America ought to be from their own are evil people. I mean, the objection to having your kid date someone with a politically different ideology is now at an all time high, much more than objections to people dating outside of their religion or race or anything of the sort. I think to come back from that precipice, there is no magic wand. There's no quick step. I mean, if I could come up with a pharmacological solution, I'd be a trillionaire and we'd all be better off. But I don't think there is such a thing. I don't think there is a magic drug, a magic wand that will heal the republic. But I think that if we chill a bit, if we talk to one another, if we try to build respect and understanding rather than just screaming at each other. And it's not an original proposition, but I think that sometimes the truth is not all that original.
- [38:58]
B
So I want to leave you with this question, and it's the one that I struggle with, and I actually struggle with it every episode of this show, which is you yourself are trying to navigate a place between being the constitutional lawyer of the resistance, which I think you've been in so many ways, and also being a voice for sober reflection, for gravitas, for reinstating real trust in institutions of truth telling. And I think it's hard, Larry, to ping back and forth between those two places. And I think particularly sometimes it feels like when you talk about sober reflection and conversation and persuasion and on the other side is Alex Jones and Breitbart and, you know, Rudy Giuliani saying truth is unknowable. I wonder if there's this problem undergirding the whole project you're describing, which is we're going to unilaterally be serious and sober and the other side is unilaterally setting the truth on fire every day.
- [40:03]
A
It sometimes does feel that way. It's why I don't get a good night's sleep very often. But I do find, I mean, you're certainly right, that the problem is a deep and long lasting one. When I read Kurt Anderson's book Fantasyland about how America has from the very beginning been filled with fantastic visions of alternative reality, that we could simply make things true by saying them, it becomes clear that nobody is going to solve that problem overnight. We've had centuries of it and it's going to continue. But we have managed, notwithstanding the persistence of that problem, to find a way past all kinds of crises. I mean, we did survive a horrible original sin of slavery. We're not done with it yet. Racism remains a terrible problem. But anybody who says that we haven't made progress over this centuries I think is fooling themselves. We got past World War II and the Depression. This looks like it's a more existential crisis than some. But I think things that we are living through always have that feel. It always feels like nobody has ever experienced anything as divisive, anything as shattering. And yet somehow we muddle by. And I have to kind of give myself some solace in thinking that we'll get past this, too.
- [41:33]
B
Lawrence Tribe is the Carl M. Loeb University professor and professor of Constitutional Law at Harvard. He is one of America's foremost constitutional scholars. His new book with Joshua Matz, which is out this month, is called To End a the Power of Impeachment. Larry Tribe, thank you so much for joining us on Amicus this week.
- [41:53]
A
Thank you, Dalia.
- [41:56]
B
That about does it for this episode of Amicus, the Impeachment Edition. Thank you so much for listening. If you'd like to get in touch, our email, as ever, is amicusatslate.com you can find us at facebook.com amicuspodcast we love to hear from you in whatever forum you seek to communicate to us and we try to get back to you and we thank you for writing in today's show. This show was produced by Sara Burningham. Steve Lichtai is our executive producer and June Thomas is senior managing producer of Slate Podcasts. We will be back with you with another episode of Amicus in two short weeks.