← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Time to Impeach Trump Again?
01:06:12
Congressman Jamie Raskin says we need an urgent constitutional update to cope with an utterly out of control president.
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- [00:04]
A
This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwaite.
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B
It's very clear that the framers had no concept of what it would mean to live in a nuclear age with weapons of mass destruction that could extinguish entire populations or civilizations. As President Trump said this week, if
- [00:32]
C
nobody impeached the President for this, if they all thought it was futile, what kind of precedent does that set? That precedent helps produce more corrupt presidents.
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A
Two broad themes emerged this week around Donald Trump's chilling turn as Dr. Strangelove threatening on Easter Sunday, quote, open the fucking straight, you crazy bastards, or you'll be living in hell. Just watch. Praise be to Allah. End quote. And then on Tuesday that, quote, a whole civilization will die tonight, never to be brought back again. I don't want that to happen, but it probably will. Now, one of the themes was that, gee, someone should do something about this commander in chief who has, let us be clear, sole authority over the launch of nuclear weapons and does not need clearance from Congress or the courts to, say, kill a whole civilization in one night. The other was that the constitutional remedies afforded to U.S. impeachment in the 25th Amendment won't help and the political remedy voting him out is already kind of cooked. The aggregate effect of all this was a whole lot of so sad. Too bad America is F'd with the side of panic and the bulk purchasing of canned goods. So I want to start by saying no. Just no. Whatever remains of the so called two week ceasefire is not actually a reprieve from this President's unfitness. The same president who stood on a balcony next to a goggle eyed Easter bunny while threatening to bomb sovereign nations is actually not a joke. And the learned helplessness of a nation that has persuaded itself that nothing can be done about this, as this demonstrably dangerous man tips us forever closer to the next crisis and the one after that is not a tenable plan for a country that styles itself as a democracy. Our show this week starts where these themes keep stalling out. Why the United States was constituted to allow a palpably unfit, mentally declining autocrat to terrorize the free world and to be permitted to do so without restraint, much to the chagrin of the American people and also of the free world. How can it be that the oldest, most perfect democracy in the world has a knife at its throat because one political party took over the courts, the Senate and the White House and then granted itself seemingly unlimited immunity, Immunity from ordinary checks and balances and the law itself. We're tackling these huge questions with two unparalleled expert witnesses. In a moment, I'm going to be joined by Jamie Raskin, who represents Maryland's 8th congressional district in the U.S. house of Representatives and is the ranking Democrat on the House Judiciary Committee. He served as lead manager in the Trump impeachment trial for the events leading up to January 6th of 2021. After that, we're going to check in with Professor Michael Gerhard of the University of North Carolina Law School. He testified as a witness at Trump's first impeachment trial and has written multiple books and articles about impeachment. Jamie Raskin represents Maryland's 8th congressional district in the U.S. house of Representatives and is the top Democrat in the House Judiciary Committee. He served as lead impeachment manager of former President Donald Trump in his impeachment for the events leading up to January 6, 2021. Raskin subsequently served on the select committee to investigate the January 6 attacks on the Capitol. He is also author, most recently of the New York Times best selling book Trauma, Truth and the Trials of American Democracy, published in 2022. Representative Raskin, thank you so much for being with us on a very busy week.
- [04:29]
B
Well, thank you for having me, Dalia.
- [04:31]
A
I'm not sure that there's a lot of folks left on planet Earth who are unaware of what President Trump said this week, what he threatened to do this week, the ways in which he threatened to do it. And so before we have a conversation about the 25th Amendment and impeachment and removal, I think it's actually really important to stake out the ways in which when people dismiss all this as, oh, this is just talk, or this was some brilliant mad king ploy that actually backed the Iranians down, or none of it really matters because he didn't, in fact, end an entire civilization. All of those rationalizations are really, really wrongheaded and damaging. And so I think I just would love for you to start by contextualizing how different, how dangerous, how violent and insupportable this kind of conduct is from the President of the United States.
- [05:23]
B
One way to capture it is to think of it from the perspective of the framers. Like if Thomas Jefferson or James Madison were here, how would they respond to the whole situation? Right. So you've got a war that was never declared by Congress, not authorized by Congress at all, a unilateral war where the president is then threatening nuclear devastation, which is obviously outside of the contemplation of the framers. You Know, someone threatening to destroy an entire civilization and to kill millions of people. All of which is to say that the Constitution wasn't really set up for it. The reason why everybody has gravitated so quickly to the 25th Amendment is because it was adopted, you know, in 1967 in the nuclear age. And it's the closest thing to capturing constitutional mechanics to address a profound crisis that shook people to the core. That day was like a horror movie with the countdown to the end. And nobody knew whether this was going to be some kind of nuclear apocalypse or not. So we can try to distance ourselves from what happened by saying it was either, you know, a mad genius act, or it was just an act of political desperation to save face. And, you know, so that he later concoct a rationalization that he had forced a great settlement, when, in fact, he seems to have given in to a whole series of extraordinary demands by Iran. But in any event, the rhetorical outburst in itself was a profound assault on people's sense of peace and security. And that's why everybody is struggling to figure out what, within the constitutional context, we can do.
- [07:06]
A
So let's talk about that, because the two cures that are being bandied around again this week, and I should note, you and I have talked about impeachment before. We've talked about 25th Amendment before. None of this is new. We just cycle in and out of these conversations about the 25th and impeachment. I find myself just saying, is it worth even having this conversation this week until and unless Democrats take the House? This feels like it's not just aspirational, but in some sense, you know, the exigency is now. Right? The exigency is not next November.
- [07:41]
B
Well, and that's the discordance of our current crisis with what is in our constitutional toolkit. You know, we just don't have the tools to address this in real time, the way that we all experience the crisis. And so, you know, impeachment is a remedy if and when it works. That takes months to put into play. Right? So traditionally, it's gone through the Judiciary Committee, it's gone to the House floor. Then there's time for the Senate to set its calendar, and then the Senate, assuming there's been an impeachment in the House, conducts a trial. The closest we came to doing it in the Trump period, of course, was the second impeachment trial, which was the most sweeping bipartisan vote we've ever had to convict a president in American history. Out of the four presidential trials that have taken place. Place. Seven Republicans joined all 50 Democrats in voting to convict. But a 57 to 43 margin, as commanding as it sounds, was not enough because it's a 2/3 requirement. So it's a very tall order for treason, bribery, and other high crimes and misdemeanors, which is left open. So that is sufficiently roomy that you can advance things that weren't necessarily specifically contemplated, but that are major acts of offense or violence against the Republic, like the President inciting an insurrection. And that's what we impeached him for the second time. The 25th amendment. This was adopted after the assassination of President Kennedy. Birch Bayh was the lead Senate sponsor. Robert F. Kennedy, the late President's brother, was very involved in it. And it dealt generally with the problem of succession and stability and continuity in government. So the first section is all about how the Vice President becomes President. The second section, section is about the President nominating someone to fill a vacancy in the Vice presidency and then each House having to ratify that approve it by a majority vote. The third section is what I like to think of Dalia as the colonoscopy section of the 25th Amendment because it's been used multiple times by presidents undergoing colonoscopies, where they temporarily deputize the Vice President to have the powers of the President as long as they're under anesthesia, as long as they're out of it. And so that's a voluntary and temporary provisional grant of those powers to the Vice President. Ronald Reagan did that, and a bunch of other Presidents have done that. But what everybody's talking about is Section four, which has never been used. Section four says that the Vice President and a majority of the Cabinet can determine that the President is unable to successfully discharge the duties of office and then transfer the powers of the President to the Vice President. At that point, if the President objects and says no, there's no problem, he can write to that effect. And if he does, then only a two thirds vote of the House and a two thirds vote of the Senate can override that Presidential Declaration of Fitness. So that's half of Section four. But the other half is interesting because it says that the Vice President and a majority of a body to be set up by Congress can make the same determination. That body's never been set up. And so in 2017, and then again in 2020, I introduced legislation to establish that body, which has never existed, but I think should be a permanent, continuing body for whomever's president. We've got 535 members of Congress, we've only got one president, and we know that a lot of things can happen.
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A
So that's interesting, because what I'm hearing you say, and this is contrary to what I've been hearing from an awful lot of constitutional scholars and political observers this week, they're all saying, no way, 25th Amendment completely off the table, can't achieve that high bar. You're saying, well, we could achieve it this second way, and we should think very seriously right now about doing that. I'm not hearing you say it's off the table until Congress changes hands or the president's Cabinet wakes up.
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B
Well, it still requires the action of the vice president. So in this context, that means that J.D. vance is a necessary partner in any action to determine that there's an inability of the president to conduct the duties of office. During this crisis. He was over in Hungary campaigning for Viktor Orban's reelection and didn't show much interest in what was going on back here and has been morally invertebrate since he's been vice president. But at the very least, if we establish this body, that body could be acting on its own in order to bring attention to the situation. Now, look, my colleagues on Republican colleagues on the Oversight Committee were adamant about writing to the presidential physician under Biden. They wanting him to come and testify about Biden's condition and so on. So they have already established that they think it's all right for Congress to be involved in trying to assess the fitness and the medical condition of the president. So this is something that is obviously a matter of constitutional magnitude. And I do think that regardless of who's president, this board needs to be set up, this commission on presidential fitness. And if you look at the bill that I wrote and introduced, and it may be ripe for resubmission, the commission would be made up half of former members of the executive branch, former presidents, former vice presidents, former members of the Cabinet, divided equally between appointees of the House and Senate majority and minority leaders. So you've got a bipartisan provenance to the people on the commission. And then the other half the commission is physicians, cognitive specialists, psychologists, psychiatrists and so on. And that's who we would need to act in a crisis like this.
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A
Congressman, I always think of you first and foremost as a constitutional law scholar. And so I want to ask you this kind of unfair, ahistoric question. Is it your view that the Constitution simply didn't solve for the kind of problem that we with an autocratic, illiberal president who simply doesn't care about the constraints of the rule of law or stability or, it seems, the welfare of the planet, or is it the fault of the Congress? Not you, but the Congress writ large. That has a role to play here. And as a result of the party system and as a result of tribalism and as a result of all the things that we don't need to talk about again, simply can't use the constitutional remedies at hand that would work in this instance if it was functioning correctly.
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B
It's gotta be a combination of those things, Dalia, because it's very clear that the framers had no concept of what it would mean to live in a nuclear age with weapons of mass destruction that could extinguish entire populations or civilizations, as President Trump said this week. So we haven't had that update, except for, theoretically, the 25th Amendment, which also doesn't appear to be directly designed for a situation like this one. Now, on the other hand, look, the framers were very clear that Congress was the preeminent branch of the government. I mean, it drives me crazy when they get up and say the three co equal branches. First of all, co equal is not a word. And secondly, if it were a word, we're not co equal with them. I mean, our revolutionary forebears overthrew a king. The Articles of Confederation didn't even have a president, right? They put a president in because they needed somebody to implement the laws. That's the core job of the president, to take care that the laws are faithfully executed. But there's a reason Congress is in Article 1. It comes right after the preamble. The same we, the people who create the Constitution and launch the country, then the first sentence of Article 1 of the Constitution say all legislative power is vested in a Congress of the United States, and then it lays out free all the powers of Congress. And we've got the power to impeach a president for treason, bribery, or other high crimes and misdemeanors. In other words, major offenses against the Republic, as Madison put it, betrayals of the constitutional oath. It's not like a beyond a reasonable doubt kind of standard. It's not about putting the guy in prison. It's about removing someone who's a threat to the continuity and stability of the Republic. That's why the Congress has the power to impute, impeach, and try, convict, remove and disqualify a president. And he doesn't have the power to impeach, try, convict, remove and disqualify us. It's because the framers were much more afraid of what one mad king or somebody drunk on power might do rather than the representatives of all the people.
- [16:58]
A
Time now for a quick break. We are back with Congressman Jamie Raskin. I'm glad you just mentioned the word fear, Congressman, because I think what we keep hearing whispered over and over again is that one of the reasons that Congress is so willing to hand over appropriations power, so willing to ignore boat strikes, so willing to wave away threats of war on a sovereign nation, is because of this fear that we hear from all sorts of sources, unnamed or otherwise, that they're in fear of real violence, violence directed at their families, their kids. You know better than anyone after January 6th that that fear is real. And yet a president was allowed to walk after that. And so I guess I find myself asking, is it your sense that what is leading to congressional inaction is some kind of bone deep sense that stochastic terror or threats of actual violence and actual lawlessness directed at them is paralyzing Congress from acting in a way that would be appropriate? And if that is the case, we are not talking about a supine Congress. We are talking about a terrified Congress. And how can a constitutional democracy continue to function under those conditions?
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B
So much of the decision making around January 6th and then the impeachment and the impeachment trial took place in the context of a fear of violence. And of course, January 6th itself was this massive unleashing of violence and incitement to violence by the president against Congress, against the vice president, and against the constitutional order. That's what Trump was impeached for in the House because he had attacked the constitutional order. There were 10 Republicans who joined all of the Democrats in voting for impeachment. But as you say, there was a lot of fear on the other side or a lot of misplaced loyalty to Trump. You know, the framers contemplated that those of us in public office would counteract ambition with ambition, by which they meant we would stand up for our branch of government, against the other guy's branch of government they had not anticipated. And partisanship overriding people's loyalty to their own branch. I mean, I think Madison and Jefferson and Hamilton would be astonished that anybody in Congress would vote not to impeach or not to convict a president for inciting a violent mob to attack Congress itself and to try to interfere with the peaceful transfer of power. And so that triumph of party thinking and party loyalty is something that was not contemplated by the framers and has become a serious problem for us. The antidote to us operating from fear Whether it's fear of, you know, mob violence or fear of personal attacks or fear of nuclear war, and fear of what an out of control president might do is for people to act with some courage and with some common sense and as much as possible across party lines.
- [20:21]
A
So we've Talked about the 25th Amendment, we've talked about impeachment. It seems to me the third curative here has to be voting right, and it has to be, come November, make the change that would never enable this to happen again. And yet we are in the situation that we know that this Justice Department has doubled down and doubled down again on its commitment to Donald Trump's program and project of vote suppression, election subversion, preemptive denialism, confusion, and causing a real doubt about whether the elections can be free and fair. And so I'm gonna say that I think swapping out Pam Bondi for Todd Blanche doesn't help that at all. And I wonder how you feel about the fact that under my categorization, Plan C, which is voting Plan C is not as robust as we thought it would be.
- [21:13]
B
Well, Plan C was always Plan A in the sense, constitutionally, the major check against an out of control government is to throw the bums out in the next election. And we have been working steadily. I've been spending my weekends out on the road campaigning for people around the country. Lots of Democrats are going out there to campaign and to build this landslide. And landslide conditions are forming around the country. I mean, I was just with Emily Gregory, who won the state representative position for Mar A Lago in Palm Beach County. We won the mayoralty in Miami, Florida, for the first time in three decades. If the referendum in Virginia passes, we could be in a situation where Virginia is sending an extraordinary slate of political leaders not seen since the days of Jefferson and Madison to Washington. You know, so there are huge changes taking place all over the country in Texas and Arizona and Colorado, you name it. That, I think, is what we cannot lose sight of. So much of what's taking place within the Trump administration is an attempt to derail us from victory in November. So we always have to keep our eyes on the prize there, because that's gonna be there for us. But as you say, we've gotta defend the election. And that's why we have an army of very serious lawyers fighting all over the country. I mean, will they try to steal the election? Of course they will try to steal the election. They're trying to steal it every day. When they close down precinct polling places in Texas, when they throw People off the rolls in Georgia. That is where it's happening now. I don't think Donald Trump can snap his fingers or wave a magic wand and terminate the election. The President has no constitutional role or authority in the conduct of midterm congressional elections or presidential elections. He's just not part of it. It's done at the state level. And Congress can legislate to alter the time, place and manner of elections. But you know, the Democrats we've got, even though we're in a minority, we've got sufficient power to prevent the mischief. At least I believe that's the case. I hope that's the case. The SAVE act being the prime specimen right now, which is, I think, an attempt to throw tens of millions of women off of the rolls. But in any event, we are going to have to be fighting along the way. Winning the election is just half the battle. We got to defend the election. But so far we've got great lawyers, people like Mark Elias, people like Democracy Forward and State Democracy Defenders, and the ACLU and the NAACP Legal Defense Fund, and they are fighting all over the country to defend our election. And then once we win it, we've got to look at how we really secure the right to vote to people so we're not constantly playing a game of catch up against people who want to to suppress voting and then SAP the meaning out of the electoral process.
- [24:16]
A
Congressman, I'm going to ask you to play us out with the crispest articulation you can give us of what you say to people who say, and I've heard it many times too many this week, that if you're calling for impeachment or you're calling for the 25th Amendment or you are wringing your hands because the President is demonstrably dangerous, you're just raising the stakes. You're increasing the likelihood that he's going to ste the election or try to stay in power. In other words, you are incentivizing him to behave more badly in the future. When you talk about removal, what's the answer to that question?
- [24:53]
B
I don't believe that. Look, I mean, I certainly believe that impeachment and the 25th Amendment cannot be a fetish for us because neither of them, as we've seen, is a panacea for what ails us. On the other hand, they should be no kind of constitutional taboo or political taboo. They are part of the toolkit that exists and we've gotta think of them in terms of our strategy and tactics going forward. And we would never take anything off of the table. Look, the Democrats in Congress haven't even been together since this most recent nightmare with Iran took place. We've been on another two week Republican compelled recess when we were demanding to be brought back to Washington so we could invoke the War Powers act and we could actually deal with the crisis. But of course, Speaker Johnson, in his wisdom decided not to do it. So I guess I would say it is important to be talking about the War Powers act, to be talking about impeachment, to be talking about the 25th Amendment, to be talking about the First Amendment, to be talking about the congressional elections and what comes after. The whole country has gotten an intensive education into the mechanics of the constitutional process and that's good. And then we have to act with political shrewdness and strategic sensibility in how we move forward. And I commend you, Dalia, for having a meaningful discussion about what the Constitution says and how it fits and how it doesn't fit the current crisis.
- [26:27]
A
Jamie Raskin represents Maryland's 8th congressional district in the House of Representatives. He is the top Democrat on the House Judiciary Committee. I really urge you more than ever to read his book from 2022, Unthinkable Truth and the Trials of American Democracy. Representative Raskin, thank you so much for your time and your clarity and for re upping. I think the we the people part of this conversation, which is waiting for some magic solution to happen that the framers didn't think of and didn't anticipate, is not a plan at all. Thank you so much.
- [27:02]
B
Thank you, Dahlia, for everything you do. Hang tight off.
- [27:08]
A
We're going to take a short break. When we come back, we're going to be talking to the law professor that we call Mr. Impeachment around here. Michael Gerhart is going to tell us why he believes that impeachment can still work as a check on this president even if conviction and removal seem impossible. That's after these messages. I want to turn now to Professor Michael Gerhardt, who in some ways I want to call Mr. Impeachment, and here's why. He is the Burton Craig Distinguished professor of Jurisprudence at the University of North Carolina Law School. He was the only joint witness in the Clinton impeachment proceedings in the House. He served as special counsel to the Senate Judiciary Committee for for seven of the nine sitting Supreme Court justices. And he testified as a witness at Donald Trump's first impeachment trial. He also served during the second impeachment trial as a special counsel to the presiding officer, Senator Patrick Leahy, and he is author of multiple books, including, For Our Purposes Today, the Law of Presidential A Guide for the Engaged Citizen. Thank you for being here to just guide us through what feels like a journey that stops at the starting blocks right now. So thank you for being here.
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C
Thanks for having me. It's a great honor. It's good to see you.
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A
And I wonder if we can just start with my premise that I just unspooled for you. Fight me if I'm wrong, Michael, because this country has 250 years in which to perfect some constitutional structure that would provide for the removal of a president who keeps proving himself and did so again this past week to be, at minimum, infirm, lacking in judgment, overtly dangerous, out of control. And yet the best system we seem to have come up with is to just rehash every couple of months the reasons there's nothing that can be done.
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C
I understand that, and it is a bit frustrating. It's also a reminder of the fact that elections matter. We are now sort of witnessing not just the consequences of an election, but the difficulty of actually addressing problems that have arisen under it. And these are very serious problems that deal with presidential accountability. And I think what we've seen over the last 250 years is more the dismantlement of checks and balances on the presidency than actually the establishment of reliable guardrails.
- [29:42]
A
I want to talk about the guardrails for one minute, and then I want to talk about how it is true that we have created a president that is king. But the conversations I'm hearing resurgent this week involve at least the two constitutional mechanisms for removing or checking a president who is behaving anything like what we are seeing in real time. And one is impeachment, and the second is the 25th amendment. And I want to start with the 25th amendment. Can you just tell us, for listeners who don't fully understand what it provides, when it was adopted, why it was adopted, what it allows for. Can you just give us a quick, like, Primer? Cause the 25th amendment comes late to the game.
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C
That's right. In terms of constitutional history, it's a relatively recent vintage. And the idea behind the amendment had to do with the fact that for years, actually for well, more than a century, there was no mechanism that existed to deal with a president who was mentally or physically disabled. And yet we heard stories, some might even call them horror stories, of presidents who were physically quite ailing, for example, Woodrow Wilson, and as a result was not really in a position to govern. And so there was a kind of secret presidency being conducted even while he was president. And there are things that presidents do or have done which you only learn about later that relate to some kind of serious physical or mental disability. So the nation ratified this amendment with the hope that it would somehow provide a mechanism that wouldn't be easily abused and that might be effective dealing with a president who no longer had the capacity really, to reform as president. It turns out that. That. That hope was illusory, and maybe even we could go so far as to say a bit silly, because the amendment is quite ineffective as a check on the presidency. It depends entirely on whether the president's Cabinet is capable of initiating a procedure for assessing his mental and physical capacity. When would a Cabinet assembled by a president ever do that? And especially for this president, he's put together a cabinet that is defined by its loyalty to him. So it's about the last thing we'd ever expect that the people closest to the president who are in the position in which really sort of fawn over the presidency and sort of hail him. Why would this Cabinet put him in jeopardy? And even if it did, it relies on Congress in order to keep intact. And there's no way this Congress would ever do anything that would jeopardize the president they're supporting in everything he does.
- [32:37]
A
So one thing that you said that's interesting is, of course, this was born somewhat of the fear that you have a president who is incapacitated, and there's these, like, shadowy actors that we find out later are making crucial decisions. In a sense, that's the complete flu of this moment. Right. I mean, he may or may not be incapacitated, but, you know, he's the one who's presumably doing the things that are really chilling. So this doesn't even actually fit the box of what the 25th Amendment was meant to solve, in some sense. The other wrinkle I just think we have to think about is that it was meant for some kind of physical incapacitation. Right. It was intended for someone who was either near death. Right. In a coma, this weird interstices where you don't know whether it's time to swear in the vice President yet. Right. That's what it was contemplating. And the really thorny part of the 25th amendment, and this runs headlong into the Goldwater rule and, you know, the unwillingness of anybody to get into the business of saying this person is profoundly mentally ill. Right. And so, in a sense, it all leads both the problems we have now. He's making decisions that are dangerous. There's no shadowy. I mean, there may be shadowy actors in the background, but he seems to be the prime mover. And we don't have any kind of mechanism to do kind of the diagnostic, clinical work of saying, this person is clearly unfit mentally right.
- [34:19]
C
I would agree with that. There's an irony here. Maybe there's multiple ironies, but one of them is this is a reminder again, of why elections matter. Is it possible that people voted for a president whom they knew or understood and are not surprised is, let's say, mentally unhinged? I think for many people, that's not news, and it wouldn't have been news even before the second term of Donald Trump. And if that's part of the reason why he's president, it makes it even more difficult to initiate any process to undo that. And I think part of the idea behind the 25th Amendment was sort of about dealing with the shadowy figures running things. But it also, I think, was designed in part to deal with a president who was physically incapacitated, but who himself really resists any constraint from within his own administration or party. So we've got all that happening, and what we're discovering more than anything else are the limitations of the mechanisms designed to deal with an unhinged president.
- [35:29]
A
Yeah, that's a good point. In some sense, when anyone within his cabinet tried to restrain him in Trump 1.0, he just fired them. Now he's made sure not to hire anyone like that and to get people who will stand up and say on television, you know, I love you, you, Mr. President, as though it's Valentine's Day. So the very thing that the 25th Amendment depends upon, which is actors who would want to in any way pump the brakes, he's already kind of resolved that problem internally, and so the whole system can't function. So that leaves us with impeachment. And I want to start just by quoting Michael Waldman at the Brennan center, wrote a sort of interesting history of impeachment. And maybe he's overstating things, but he put it this way. At constitutional convention in 1787, the founders talked up a storm, but when it came to the presidency, they were tongue tied with a long and embarrassing stretch of silence. George Washington, after all, was sitting right there. They all knew he would be the first president and he would never be a tyrant. They reassured each other. Never a Cromwell, never a Caesar. So they voted to create an office with few limits and few defined power. Supreme Court Justice Robert Jackson. And this is still Waldman writing later called their outline for the presidency quote, almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. So it seems to me that the hurdle that they created in some sense was, I don't know if it was like Founders courtesy, that they just didn't sort of want to talk about it. And so they. They did debate impeachment, and they felt strongly about it, but there was this weirdness of not quite knowing what it was they were trying to constrain. Is that fair?
- [37:20]
C
I think it's somewhat fair. You know, I like Michael Waldman. It's a very interesting, thoughtful piece. I do think it may be a bit of an overstatement to begin with. You could imagine a group of people who decided for themselves to write a new Constitution for themselves, had just published the Declaration of Independence, which was directed against a mad king who was a tyrant. And the declaration set forth 27 articles of impeachment against that king. That was purposeful. Why did the writers, particularly Jefferson of the Declaration, do that? It's because the king of England was not subject to impeachment. And so by writing the Declaration in that manner, they were directly attacking part of the problem with the British tyranny. And that is there was no mechanism to check an abusive king. So what did the framers want to do? I think pretty much once they got to Philadelphia, near the top of their list, was to ensure that nobody would be above the law and starting, of course, with the presidency. So I would not say there was silence about the presidency. In fact, there's quite extensive debate among the delegates about presidential impeachment. Whenever the topic of impeachment came up in the Constitutional Convention, the focus went right to the presidency. Why? Again, because those folks understood what damage a tyrannical president or leader could do. So every example given of misconduct that could justify impeachment was an example of a presidential abuse of power. So, yes, everybody trusted Washington, but they also had a hope that the American people would ultimately choose someone for the position of president who had a strong moral character. That was a common, widespread hope. And that hope was also quite naive. And I think the delegates tried to put checks and balances into a Constitution to guard against somebody who might lack strong moral character. But what they really didn't plan for was the rise of political parties, the lust for power. And what happens when a faction in the form of a party takes control of the entire federal government. We have no part of the federal government that wants to hold this president accountable. There isn't one. And that Means trouble for the Constitution and for the American people.
- [39:43]
A
Can I stay with the framers for one more beat? Michael, you talked about the fear of tyrannical power. There was the fear of what so many of the framers called a demagogue. And I think it was a term of art that we don't understand or we misapply the catego. The word demagogue is used 21 times in the speeches given at the Constitutional Convention. They were terrified of something separate and apart from like the despot and the tyrannical king. And that's the demagogue. It meant something very specific. It wasn't just like a bad guy. What were they afraid of? And is Donald Trump that thing, whatever that demagogue thing was, was impeachment meant to protect us from that as well?
- [40:29]
C
Well, the answer is yes, it definitely was designed in part to protect us against demagogues. And that kind of raises a couple different themes in the Constitution. So one, yes, has to do with the checks and balances against somebody who was, for lack of a better word, a populist, but really just appealed to the worst sentiments among the people and particularly among a majority. So that's related to the idea of tyranny of the majority. So it wasn't just trying to restrain a president, president who was kind of full of himself and who lusted power and manipulated people in order to maintain and consolidate power. It was also meant to constrain the majority, just acting pursuant to whims or its own power, sort of craving. If we look at the Constitution, it's largely set up to be counter majoritarian, that is to say, to frustrate majority will. Now that turns out to be a problem. If you want to go after a president who is actually in control of the majoritarian sentiment and just manipulates it, feeds it into a frenzy. To do what? Keep people off balance, to keep people uninformed, to keep people uncertain about where danger could come from their own government. Those are a lot of the characteristics of a Trump presidency. And it's all purposeful, by the way, written about by numerous great scholars on tyranny. This is how tyrants keep people off base. It's also how democracies die. They die when you might have somebody who is a demagogue. That means somebody who doesn't really believe in the system, doesn't believe in the rule of law, is not committed to anything other than their own aggrandizement. I think that pretty much sums up our situation. But these mechanisms the Constitution turn out to be ultimately naive and ineffective when coming full circle. None of the other institutions have any interest in checking the demagogue.
- [42:35]
A
You've mentioned now that one of the baked in failures, Michael, is that they didn't anticipate the party system, right? They didn't anticipate the sort of blinkered loyalty of self serving careerists who are just like, whatever you do, I've hitched my wagon and we're off. I'm just curious about the role of shame. And I'm certainly not, you know, the first to point out that it seems to me that presidential impeachments don't happen for a really, really, really long time. And then they happen boom, boom, boom, boom in quick succession in, you know, recent decades in some ways, because I think that the framers believed that the threat of the sort of soul crushing career cr. Historical shame that would be brought upon you if you were impeached would act as its own check. And that seems to have been a miscalculation. Or correct me if I'm wrong. Were they naive about the fact that they thought this in its own right would be a huge, huge basis by which presidents would moderate their behavior? Or are we just in a spiral now where we do so many impeachments that the shame of being impeached is lost?
- [43:56]
C
I think it's a combination of things. I'm not so sure that the framers or founders were focused on shame as a check, although I think they thought popularity could be a check, but then that turns out to be illusory as well. I think what they were trying to do was deal with a president who was corrupt for whatever reason. And, and part of the problem is if you don't get somebody who has a strong moral center, who has values that are not subject to compromise, who actually respects the rule of law, then you might not have a problem. It actually reminds me of something from Cormac McCarthy, the author of no country for Old Men, and I'm paraphrasing a quote he uses or comes up in the book. Good people don't need the law because they're good. Good. They're going to do the right thing because they're good. But bad people are going to ignore the law and just violate it. His point being the law is pointless. People will either be good or they'll be bad. And I think the framers probably shared a good bit of that. Remember Madison, Mennonite Angels? And so the government is set up partly with the expectation, okay, okay, presidents might be flawed. I just don't Think they thought about somebody who was so flawed and then that person also had captive the leaders of the other branches because they supported his presidency, because it had to do with the advancement of their own political party. And I think that's the thing that really came apart. One of the things the framers most feared was factions. That comes up a lot. And factions were just self interested groups. Well, the biggest faction you can imagine is a political party. And we have a political party made up of a few leaders that now govern all three branches. And so Congress is not using things like oversight, not using things like its appropriations power powers that it has to check this president because they don't want to check this president. And that is a problem the 25th amendment was not designed to do deal with. And that poses a problem for impeachment because it means you've got a bunch of people in the Senate who are not going to bite the hand that feeds them and throw out a president whose power they actually want to maintain.
- [46:17]
A
The actual language of the Constitution provides that the President, quote, shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors. Am I right, Michael, that the American public thinks that means there needs to be like a bullet and a smoking gun? Because I, I do remember certainly in the first impeachment there was a sort of inchoate sense, like I'm not really sure what the crime was here. Doesn't seem to be a felony. Maybe it's just politics. The second one I think in some sense was easier. It looked as though there was an actual act of malfeasance that we could all name. But has the American public misapprehended the language of the impeachment threshold told to a place where, I mean, I'm just paraphrasing, but like someone would have to be shot on fifth Avenue for us to impeach. Or am I overreading that too?
- [47:15]
C
I think a lot of people unfortunately don't understand it. So I think this may be hopefully become clear through sort of identifying two things. The first is what the actual meaning of the terms in that phrase you just quoted are. Treason is defined in the Constitution, but we also all understand it as disloyalty to the government and actually actively trying to undermine it. Bribery, Again, we have a rough sense of that. The common law bribery was, you know, somebody who misuses their office to attain financial advantages or other advantages for themselves. And then the really troublesome language interpretively arises from other high crimes and misdemeanors those were actually technical terms. And there really was not a lot of doubt among the framers what those terms referred to. They referred to what the framers understood from British law as political crimes. That's serious abuses of power and serious injuries to the republic. So a crime was something serious, a high crime. High referred to government. Government. So it was a serious abuse of governmental power that injured the country in some important way. And then misdemeanors were the acts that facilitated those crimes. That's what the language basically meant. However, what the framers also didn't appreciate was that once you get into the business of presidential impeachments, presidents have an incentive. Incentive to narrow the set of impeachable offenses. What's a good way to do that? Oh, they all have to be crimes. They have to be indictable crimes. And why would they do that? Because the language really was designed to cover more than indictable crimes, covered a lot of things that were not crimes at all. A president, for example, lying to Congress about a treaty, that was an example that came up in the convention. That's not a crime. You don't go to prison for that. But it's certainly bad for the country. Country. And so what we end up with is underestimating the degree to which presidents can use their bully pulpit to mislead people into thinking the set of impeachable offenses is quite narrow. It's only indictable crimes. Well, that helps the person being impeached. Now, the incentive for Congress, if it were not subject to party control, would have been to define that language broadly. Broadly, more like the British understood it. However, when you have the party of the president controlling Congress, they will go along with that narrower understanding of the scope of impeachable offenses. And they'll only expand it. And we all know they'll only expand it when it's a president not from their own party.
- [50:01]
A
So I'm going to ask you the ridiculous follow up, which you can answer in one word, but there's no doubt in your mind that what we have seen from President, President Trump in this second term rises to meet the definition we've just been discussing.
- [50:17]
C
He's writing a textbook on all the things that are impeachable offenses. We're not going to list them all.
- [50:23]
A
No.
- [50:23]
C
But it's fair to say every day you could read the paper and find an impeachable offense.
- [50:28]
A
Here's where the rubber hits the road, because we've now established that absent controlling Congress, and even when you Control the House. We've learned securing a conviction is really hard. And removal, at least with Trump, has proved elusive. Here's where you're going to say impeach him anyway and surprise us all because I think that your view of this is that even though this is inapt and difficult and a high threshold, it matters. And that the very political conversation about, well, you know, we can't do anything about it, so let's not do anything about it, is ultimately completely self defense.
- [51:10]
C
So look at it this way. If nobody impeached the president for this, if they all thought it was futile, what kind of precedent does that set? That precedent helps produce more corrupt presidents and more presidents who are unconstrained by the rule of law. However, if impeachment were used, it does achieve a couple things. First of all, it establishes record. And that's a record that will stand for all of time. And that record, which is also being compiled these days by the media and on the Internet, because we get stories and videos and reports that the President cannot erase. He can try and recharacterize them, but he can't make them go away. He can remove the exhibits on impeachment in the Smithsonian, but he can't remove the state stain of impeachment. So you get the record and you get the stain. Those are two things that are really irritating to a president. And how do we know it's irritating to this president? Why else would he have removed those exhibits from the Smithsonian? Why else in his hall of Presidents would he talk about himself without ever mentioning impeachment? It's because he doesn't like it it and so he tries to cheapen it or get rid of it. So this is an additional reason why the President was pushing for the impeachment of Joe Biden. It would have helped demonstrate how impeachment could be used for a partisan purpose. And once that was done, that would lower people's confidence in impeachment. That serves President Trump's self interest. But the difficulty is if there is an impeachment, impeachment like there was for President Trump, twice in those cases, Congress produced an indelible record of misconduct that cannot be erased. And that becomes a different kind of check on the President. It means basically, the president is for all time subject to history's judgment, which is negative.
- [53:18]
A
Yeah, it's the same point that so many of not just, you know, folks in the press are making, you know, the Tim Snyders, the folks who keep saying, you know, keep a record, keep a record. It's in our lane you know, so many of the litigators who are winning in the district courts in the face of what are you gonna do when the Supreme Court reverses? You say the same thing you just said, Michael, which is we are creating a record. We are creating an indelible historical narrative, and that matters. And just to your second point, I think it's no coincidence. We know how much the first two impeachments got under Trump's skin. Not just because of the erasure you're describing, but just this week we've got the Civil Rights division at the Justice Department going after Cassidy Hutchinson, right, The very brave young White House aide who testified, you know, about the violence at the Capitol in 2021. And now we've got the full machinery of the DOJ, and the most improbable part of the DOJ going after her. Right. So it's part of this. We have to make every bit of this record disapp and we have to make sure, right, it's the same reason to go after Adam Schiff or to go after Jack Smith. But I think your larger point is you can tell this is problematic for him and that's all the more reason to keep doing it. Right?
- [54:42]
C
Right. I mean, these efforts are efforts to rewrite history. They're also efforts to try and intimidate other people from not turning against the President. It's also also, sadly, a reaffirmation why elections matter. I don't think anybody doubted once President Trump was reelected that he was going to use his office and powers to go after his political enemies. That should not have been a surprise to anyone. And frankly, a lot of people who voted for him probably want that. So we've got this tension between what the voters allowed or wanted, what the President will surely be doing, doing, and the ineffectiveness of the Constitution's mechanisms for dealing with his corrupt practices. We haven't even talked about the self dealing, which is outrageous. The President has doubled his net worth in less than a year and a half in his second term. That was the last thing the framers wanted. But the mechanisms they put in place, place, which really was primarily impeachment at the beginning, just has not been able to be used for that. Part of the reason is we've had corrupt presidents in the past. Their corruption has been pretty easy to spot. But we've also had a lot of presidents maybe we don't necessarily have liked, but turn out to be stand up people in terms of their values. Now with President Trump, we knew before the first election, we knew during the second election, and we know now after the third election that Trump would be doing exactly what he's doing. A good predictor of what Trump is going to do, we all know, is what he says the other side is doing. And he says they're corrupt and they would self deal and they would do all these bad things. That pretty much tells us what his agenda is.
- [56:31]
A
It's so interesting listening to you talk because it does raise the question. It's not just, you know, his own self dealing, it's his sons, right. It's members of the cabinet. I'm remembering not to be precious, the very lengthy comments, conversations we used to have about the emoluments clause, right, in the first administration, like when the dinosaurs roamed the earth. And it's funny because in some sense it's another thing we just seated, right, like we were very, very anxious about it. And as you said right at the beginning of this conversation, not only did he run as a demagogue with no intention of supporting the architecture of the law around him, but people voted for that. People like that in him. And so then when you're just constantly ceding ground and saying, okay, this administration, we're not even going to say the word emoluments, right? I haven't written about it. I don't know if you have. But as you give away that ground, what you do is allow the lawbreakers to break the laws and then you wring your hands and say there's no mechanism to control him because you've given it all away. And this is, I think, part of your point about why you fight the fights because you can't just say this stuff is all inoperative. The other thing that I guess I just need to ask you, because it's a political point, but you have said a couple of times, you know, elections matter and the will of the voters matter. But there is this very horse racy theory out there, and I'm reading it a lot this week, that holds that, you know, impeachment causes a backlash and Trump was impeached twice and it made people mad and there was nothing there. And so Trump got to cloak himself in his victimhood and his martyrhood and that in fact the attempts to impeach him actually emboldened him. By the way, we heard those conversations about, you know, when Merrick Garland was seeking accountability for January 6th as well. So this is the kind of like don't make the abuser angry theory of the case. But I'd love for you to respond to it because There is a very real sentiment out there that holds that anything you do now to even raise the specter of another impeachment would just A, drive him crazier and make him overreach further and B, redound badly in the midterms.
- [58:51]
C
Well, I think that's what Trump would want. And Tim Snyder, the great historian on tyranny, has described this phenomenon. And in this particular instance, it's the phenomenon of, oh, we don't want to impeach him because he might hurt us. That sounds like the language of a abuse. Now, why are we or why is Congress willing to abdicate its responsibility to impeach? That's what Snyder calls anticipatory compliance. It's doing stuff in order to avoid being hurt, avoid being punished. But that is, as Snyder points out, a giant step toward tyranny. And when we allow that, we are giving up rights, and we are also abandoning. Abandoning processes, like you just said, that exist to check misconduct. So I think one thing that is perhaps likely to happen is people will try and check it, not just for the sake of hoping the check matters, but to make sure those mechanisms don't disappear. So impeachment may not be very effective if you want to get them out, but it may become very effective because it irritates him. And by the way, anybody who thinks that we shouldn't do anything because it's gonna irritate Trump, they're truly naive because everything seems to irritate him. And he's gonna be this way anyway. Here's the thing. Trump's gonna be Trump, regardless of what happens with impeachment.
- [60:21]
A
You've got a forthcoming book. It's very, very in line with what you've said several times, which is, this isn't a failure sol imagination on the part of the framers. This isn't a failure of the impeachment power. This is a structural failure of how the Constitution was designed and how it has collapsed under the weight of partisan politics. If we go back to the original design and get rid of the supine Congress and the captured court and the party system and a cabinet that is exists to scream into the microphones, I love you, Mr. President, some of this is, in fact, fixable.
- [61:07]
C
That's right. And this is actually where the American people come in. If the American people are willing to stand up for or insist on compliance with certain basic principles, that might make a difference. So one thing I think that sometimes doesn't get talked about with respect to impeachment or any of these mechanisms. Mechanisms is how they arise within a cultural context. Culture matters. So if culture, for example, becomes more tolerant of, let's say, extramarital behavior, that will help Bill Clinton, and arguably it did. If people or the culture tolerates ignoring the rule of law for the sake of making a buck, that is going to hurt the rule of law. And it'll help us President if people think lying is okay or not that bad or not much of a problem, even from our government. You know, that's what governments always do. Guess what? They'll do it more. So culture itself, in a sense, helps to determine the degree to which a society is receptive to certain kinds of misconduct or not. And I think the American culture. Culture, I think, has become too receptive of these things. Oh, everybody does that. Well, the thing is, everybody doesn't do that. How do we know that? Well, President Trump, in a little more than a year, has unilaterally initiated eight military campaigns. No other president in American history did that. Did they do a couple? Yeah, absolutely. But he's not only done eight, he's threatened. And so it's not just the election that put him there. The culture seems to be tolerating that kind of misconduct. And so the culture defines our values. Our values, I think, are not the ones the framers would have wanted us to be following. They would have wanted us to insist on virtue manifesting itself and being present in all of our leaders.
- [63:13]
A
Professor Michael Gerhardt is the Burton Craig Distinguished professor of Jurisprudence at the University of North Carolina Law School. He was the only joint witness in the Clinton impeachment proceedings in the House. He served as special counsel to the Senate Judiciary Committee for seven of the nine sitting Supreme Court justices and testified as a witness at Trump's first impeachment trial. He is also the author of too many books to mention. He is also a renowned scholar on this impeachment process, why it matters, and why we fight for it. Michael, I cannot thank you enough for giving us your time today.
- [63:52]
C
It's truly an honor. It's great to be able to participate in the program and see and talk with you. And I wish us all the best.
- [64:02]
A
I do, too. Thank you. That's all for this episode and Amicus plus members cannot be wait to see you in the bonus where Mark Joseph Stern is going to join me to wade through all of the legal news. We couldn't get into the main show today, and there is much to catch up on in the smokeless cigar bar on today's Amicus plus bonus episode. The Kavanaugh stop is back in the news. There's a brand new class action lawsuit that is going to challenge these unlawful detentions. But that's not all. In intra SCOTUS drama, we're going to break down the meaning of the surprising moment this week when one of Justice Brett Kavanaugh's fellow justices on the court took a big old public swing at him about his opinion in that case. Plus, we're going to try to wrap our minds around the humiliating, desperate, sad declaration of Wait for it, love from Donald Trump's new new acting attorney general, Todd Blanche. Visit slate.comamicusplus to join the joyful ranks of our plusketeers. By joining, you support the work that we do. You get loads of extras and ad free listening and paywall free reading@slate.com you can also subscribe to Slate+ directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you in there. Thank you so much for listening. Thank you so much for your letters and your questions. Keep them coming. We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube. Or you can rate us and review us on Apple Podcasts. Sara Burningham is Amicus Supervising producer. Our producer is Sophie Summergrad. Hillary Frye is Slate's Editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive Producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We will be back with another episode of Amicus next week.