Amicus With Dahlia Lithwick | Episode: "The Impeachment Question"

Date: May 26, 2018
Guest: Professor Laurence Tribe, Harvard Constitutional Law Scholar
Main Theme:
The episode explores the history, meaning, and tactical use of the impeachment power in the U.S. Constitution—especially in the context of President Donald Trump’s administration. Dahlia Lithwick and Laurence Tribe discuss the constitutional framework, the perils of “magical thinking” about impeachment, Mueller’s investigation, and the deeper challenges facing constitutional democracy beyond one president.

Key Discussion Points & Insights

1. Impeachment and the Constitution

• The Design and Intended Use of Impeachment

  • Impeachment is not designed to remove a president for being "terribly unhappy with his values" but for "high crimes and misdemeanors." (00:06, Laurence Tribe)
  • The Constitution’s language is less vague than assumed; it doesn’t allow impeachment for “misbehavior” or “ maladministration” as in some countries. (26:14, Tribe)
  • Removal should only occur when the president endangers the republic’s survival, not for policy disagreements.

• The ‘Shoe-on-the-Other-Foot’ Test

  • Tribe argues that impeachment should pass a neutrality test: Would we want impeachment if the same actions were committed by a president whose policies we supported? (23:20, Tribe)

• Quote:

  "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."
  — Laurence Tribe (00:06)

2. Legal and Political Crisis in the Trump Era

• Presidential Abuses and Norm Violation

  • Tribe: President Trump’s openness in pressuring the Justice Department and attempting to direct investigations is an unprecedented “legal crisis.” (04:52)
  • The danger is in the “normalization of outrage,” with behaviors on the “very edge of tyranny” coming to seem routine.

• Quote:

  "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. ... It's the normalization of outrage, the normalization of the very edge of tyranny that I'm most afraid of."
  — Laurence Tribe (04:52)

3. The Mueller Investigation and Magical Thinking

• Limits to What Mueller Can Achieve

  • The investigation may abide by DOJ guidelines against indicting a sitting president, but evidence gathered could be used post-presidency or fuel oversight. (06:51, Tribe)
  • Magical thinking (awaiting a "superheroic" solution) is unhealthy; only “we the people” can save constitutional norms. (19:24, Tribe)

• Quote:

  "There is no deus ex machina clause in the Constitution. There's nothing that will save us from ourselves."
  — Laurence Tribe (20:24)

4. How Abuse of Power and 'Collusion' Fit In

• Collusion vs. Criminality

  • The legal term “collusion” isn’t what's most important; what matters is abuse of the system and legitimacy of Trump’s presidency. (12:45–15:10, Tribe)
  • Obsession with prosecuting criminality misses the deeper accountability question — impeachment is about abuse of power, not simply crime.

• Quote:

  "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."
  — Laurence Tribe (15:32)

5. Political and Social Consequences of Impeachment

• Potential Civil War and National Trauma

  • Tribe’s new book argues that impeachment, even if justified, could be seen as a coup by Trump supporters and further polarize the country. (17:26-19:24)
  • Polling shows a divide even inside the Democratic Party about whether to run on impeachment, risking internal “civil war.” (30:44)

• Quote:

  "Were Trump removed from office by political elites... some of his supporters would surely view the decision as an illegitimate coup."
  — Dahlia Lithwick (reading Tribe, 17:26)

6. What Impeachment Isn’t

• Common Misunderstandings

  • Impeachment does not itself remove a president (it leads to a Senate trial).
  • Not all crimes are impeachable, and not all impeachable offenses are crimes. (34:32)
  • It is a “mixture of law and politics,” not a straightforward legal or political tool.

• Quote:

  "A lot of people think impeachment gets rid of a president. It doesn't. It only moves to a Senate trial...people think impeachment is all about whether or not the president has committed a crime. That's not what it's about."
  — Laurence Tribe (34:32)

7. Beyond Trump: Structural and Cultural Challenges

• Problems Go Deeper Than One President

  • Mistrust in government, partisan polarization, and rejection of objective truth are societal problems that won’t be fixed by removing Trump. (36:13–37:14)
  • Solutions must involve organizing, technology reform, and fostering mutual respect—even if there is no “magic wand.” (37:14)

• Quote:

  "...the solution for this is politics and organizing and thinking, or at least the solution isn’t impeachment."
  — Dahlia Lithwick (summarizing Tribe, 36:13)

Notable Quotes & Memorable Moments (with Timestamps)

• On Constitutional Constraints:

  "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."
  (00:06, Laurence Tribe)

• On Normalizing Outrage and Tyranny:

  "It's the normalization of outrage, the normalization of the very edge of tyranny that I'm most afraid of..."
  (04:52, Tribe)

• On Magical Thinking and White Knights:

  "There is no deus ex machina clause in the Constitution. There's nothing that will save us from ourselves."
  (20:24, Tribe)

• On Abuse of Power versus Criminality:

  "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..."
  (15:32, Tribe)

• On Impeachment as a Political Tool:

  "A lot of people think impeachment gets rid of a president. It doesn't. It only moves to a Senate trial, a grand inquest."
  (34:32, Tribe)

Timestamps for Important Segments

• Opening on impeachment and the Constitution’s design: 00:06–02:00
• Laurence Tribe on normalization of presidential abuses: 04:52–06:07
• Limits of Mueller investigation, value of oversight: 06:07–11:52
• "Collusion" rhetoric and legal reality: 11:52–15:32
• Tactical and principled challenges of impeachment: 17:26–24:08
• Defining "high crimes and misdemeanors": 26:14–30:44
• Democratic debates over impeachment, national divide: 30:44–34:32
• Clarifying what impeachment is and isn't: 34:32–36:13
• Structural issues beyond Trump, lack of “magic solution”: 36:13–38:58
• On maintaining sober resistance in a polarized age: 38:58–41:33

Summary

Amicus’s “The Impeachment Question” brings listeners a nuanced, deeply informed conversation with Professor Laurence Tribe analyzing the risks, limits, and misunderstandings surrounding the impeachment power in the U.S. Constitution. Tribe warns against both the normalization of constitutional abuses under Trump and the irrational hope that impeachment or a special counsel will magically “save” democracy. Instead, he champions civic action, constitutional fidelity, and honest reckoning with the nation’s polarization and mistrust. The impeachment mechanism, he insists, should be reserved for existential threats to the republic and not wielded for policy disagreements or partisan advantage. The problems Trump presents expose deeper societal rifts and require patient, long-term democratic engagement beyond the removal of any one individual.