« The Weeds

The four words that will decide impeachment

2019-10-19 | 🔗

This was the week of confessions. Acting White House Chief of Staff Mick Mulvaney admitted to a Trump administration quid quo pro with Ukraine, with cameras rolling. EU Ambassador Gordon Sondland confirmed that President Trump made Rudy Giuliani the hinge of America’s Ukraine policy. And then the administration announced that the location for the upcoming G7 summit: Trump’s own resort in Doral, Florida. We break down the three stories that mattered most in impeachment this week.

And then we dig into the four words that will shape the entire impeachment fight: “High Crimes and Misdemeanors.” What did they mean when they were added to the Constitution? How have they been interpreted through American history? And do Trump’s acts qualify?

Welcome to Impeachment, Explained. If you enjoyed this episode, subscribe to Impeachment, Explained on Apple PodcastsSpotifyStitcherOvercastPocket Casts, or your favorite podcast app to get stay updated on this story every week.

References:

"Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power" by Gene Healy

"The case for normalizing impeachment" by Ezra Klein

Credits:

Producer and Editor - Jeff Geld

Researcher - Roge Karma

Engineers - Malachi Broadus & Jeremey Dalmas

Theme music composed by Jon Natchez 

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
Hey we does it is as decline. We have something new for you today, I'm the host of a new podcast impeachment explained it begins today were putting it in this feed, but we hope you enjoy this first episode and subscribe to the show for the next once I, the link to subscribe will be, of course, in shuts bees. Joy said, one on high crimes and misdemeanours. The actions that the term presidency revealed dishonourable fact, residents, betrayal of his oath of office betrayal Of our national security and betrayal of the integrity of our election, I'm announcing the House of representatives moving forward with an official in
the president must be held accountable. No one is above misapplied indices, impeachment explain what we do impeachment blind every week, really do two things on this shot. One we're gonna check in with what news actually mattered that week. What that happen that way! actually show up potentially in impeachment trial, and they were gonna. Look at something deeper about the impeachment process power. The geopolitical context that is gonna shape was going to say, so This week we must start with three things that happened this week, that I think we're gonna remit. For quite a while one is acting chief stuffing. Romania's confession of a quid pro quo, then very strange attempt to walk out back, but but quite a remarkable moment.
Gordon salmon, the ambassador to the Eu S statement and and hearing which again I think I would fall under the book of confessions that are quite remarkable and the trumpet ministrations decision to host Helsinki, seven at the Trump resort in interval, which I think might just added another art, while the impeachment toward the house is going to try to investigate and they're gonna talk, the the forwards that are gonna, shape, impeachment high crimes and misdemeanours, but join me tat taught by the news stories this week, my colleague and friend medication, motivations of weeds. Thank you for coming, help break the stout great to be air. So, chief of staff, Move, any gave a press conference is weak and abc John Carl, ask him a question and what followed was one of the most marketable on air confessions. I have I have ever heard, but let's hear clip from it is this right is a quick profile. It is funding, will not flow unless the investigation,
server I as well with we do. We do that all the time with foreign policy. We were holding up money at the same time for what was the northern trying to come. Countries were holding abated nor the tribal countries so that they so that they would change their policies on immigration. The speech to important point, because I heard this yesterday I can never member the gentleman who test was Mckinney, the guy that his name for me. I don't dont know me justify yesterday and if you believe the news reports take us not seen any transcripts of there's your transcript, as was summoned testimony more. This morning, if you read the news, words and you believe in what a Mckinney say. Yesterday Mckinney said yesterday that he was really upset with a political influence in foreign policy. That was the agency was so upset about this. I have news for everybody get over cement. That thing happening there is he saying we do could propose in foreign policy all the time? So there's no problem that we did one here too, but do you think of that argument? I mean of
She Duke we propose in diplomacy all the time right. That's like you know, it's it's an exchange between countries. The key point, though, is that we're in exchange here in which the United States is doing policy for Ukraine and in exchange, Donald Trump One's personal political favour right he's operating not on behalf of the American national interest or his eye. The idea of the american National interests but sort of his campaign tactics and his really weird desire to exonerate Russia from that, the Dnc hacks and that's a critical difference here. There's political influence in foreign policy all the time not in this sense. There isn't much. You know there's no holding up of foreign aid unless people gin up campaign dirt on their political adversaries, if that was happening, all the time like we would remember. One thing you mention there. Man that I want to dig into for second, is something that was surprising about that mulvaney comment is
is actually not talking about the quid pro quo. Most of this is based around. I think that that is people think about the impeachment process are thinking about Donald Trump quantity. Rain to investigate Joe Biden, sons, roll on Burma and the particular investigation he's talking about is of a conspiracy theory around a company called crowd, strike or whether it was Ukraine that have the decency and twenty. Sixteen, not Russia, which I think Trump thinks in some abstract way, would exonerate him. Video trying to examine himself and then my cut himself into this mess is a profound irony of true, but but he's talking about it to a different option. Investigation than I think most people focused on here, yeah, he seems to have a few for an idea is confused together right, but so one is that he thinks this company crowd strike. This is like out, like a data company, that the Dnc you used to help do their investigation into who had their server trump
has said many times, including on the call with President Zalewski that he thinks crowd strikes. Owner is ukrainian, and that is not the case at separately. Trump Paris to believe that there is a single physical server. He used the phrase thus server that the day and see some house world away and may be located in Ukraine and its not just that there is no server in Ukraine, that there is no server. At all, add the Dnc has a cloud based email system. As do many of us. There are servers that lamented, but the reason the FBI was not give in some physical box is that their there isn't one. So this whole thing is kind of Lupi, but Trump appear is to believe in it either genuinely believes in it, or at least genuinely wants to maintain that the pretence of believing in it up. For some reason, this
a lot of reporting to the effective. You know different briefer. I've tried to talk him out of this, but he's really pushed it. Bill bar went to Ukraine. Talking about this. He talked about in his with investors, Lansky and Mulvaney- seem to be happy to concede that there was a quid pro quo about. This crowd strike business may be seeking to then exonerate the administration from the Hunter Biden, charisma charges, something else he said I think, is worth pointing out for second, which is this idea that What don't trumps doing here was not related to any conception of even his. Adoption of the american interests, and what strikes me about the Trump Administration is that I think he can generously very consistently articulated viewpoint. Is it it's, and I think this is a common thing for popular, around the world, but there is a tendency to combine the interests of the populace leader and the interests of Country such it. You have to Down norms and even laws in order to
best a gate. Your corrupt opponents, who pose such a threat. The people or to the country's future that you just can't be you mean Billy battling with all these niceties and the way in which Donald Trump in front of the cameras. Gone said. Yes, I do want Ukraine and China to investigate Joe Biden. The way which make mulvaney came out said this we'll talk about moving his walk back in a second, but there's been a kind of warping between one argument. Is we didn't do it, but then the ugly other argument is, we did do it and we were right to do it, because it's important that we invest in corruption? I think don't jump. It won't pointed that's that's my job that actually strict he's in some ways scarier version of this. It's one thing they December being cynical and corrupt is actually more. Dangerous fur trump and his administration to adopt that kind of authoritarian mindset in which their interest on the country's interests, and everything else should fall before that. Yeah me a kind of like triple switch here right one? Is that only
people who support tromp are sort of like the real members of the national community in terms vision of it, but then also his leadership of the nation is so important that anything that advances his poet the agenda is you know, definition only serves the national interest and you know it. It all has a kind of residence, as you say, with a certain You know what the style of Plebiscite Terry Authoritarianism that were familiar with from certain foreign countries. You know we're somebody. You win action once or you put some referendum on the ballot nets like now. I have unconstrained power other. What's particularly strange about Trump with all of this is that he has allowed of the mannerisms of a kind of majority, carrion authoritarian, but never had majority support right he's not popular now. He didn't get their many votes in the twenty sixteen election. So it's a sort of ink credibly shady and disturbing kind of thing where he is they sing.
Were instrument of the will of the people, but he doesn't even need to maintain most of the people's backing to sort of have that role. In his own mind, so Michelob Amy's comments Do not appear to have gone over well at the White House, the president's lawyer, J Secularism, I'm really sorry meant setting. The president's legal counsel was not in vault in acting chief of staff, Mc Mulvaney press briefing, which has acquired market statement for the presence lawyer too, to make ends meet many released a statement. Re said once again, the media's decided to misconstrue my comments to advance a biased and political witch hunt against President Trump. Let me be clear: There is absolutely no quid pro quo between ukrainian military aid in any investigation into the twenty sixteen election. There is something to go back to the populist authoritarian point, there's something quite remark: the about watching with any say one thing on television say: it clearly tell people to get over it and I come out a couple. Later and say I.
Say that at all it's the biased media is telling you. I said that I mean the cameras were running the summits online betting, about watching this flagrant effort to tell us to not believe what we just saw happen. It actually strikes me as an important kind of moment and tactic ye. I mean you know. I think people will look I can say that very first chance by Sir Press conference in which he is looking at photos of inaugural crowds and his containing that clearly smaller crowd was bigger, is just like a weird thing that happened one day right, I mean it's genuinely the signature move of this whole administrations, public communication strategy. Right is it's not it's. Like persuasive, lying right, It's not really an effort to come, few someone who's paying attention with a kind of clever ruse. It's a statement that Guenaud fact city and verification are not important to the players
they're not gonna, be bound by consistency. Another thing that happened in the middle of this is Donald Trump June. You're, went on Fox NEWS to do interviews in which he denounced the evils of nepotism and spoke very eloquent about how a guy like Joe Biden has made his whole career out of just being his father's side, and I mean this is like Donald Trump Junior levelling this complaint ready. Doesn't it doesn't make any kind of sense, but very willing to operate like totally outside the boundaries of mentioning argumentation. So, let's talk about Gordon summoned who testified it here, doing this week, go to summon the ambassador to the European Union, who ended up, seem being. I don't really want. They in charge but central to the Ukraine pot, despite Ukraine, not being in the EU resources That the? U S embassy Ukraine, Marie Governor, which was recalled because
he wasn't being helpful and that left them bill Taylor who is as top ranking state employees in Kiev, unlike occur, diplomat if he wasn't gonna, be helpful so summoned, who had donated million dollars through four Elsie companies to double jumps, inaugural festivities and had busy bought himself some ship was, can assent in it. Fix our working alongside repairing who resigned this week and could Volker who was a special representative for Ukraine and the salmon gay This testimony that with trying, I think too, that he didn't do anything wrong and to his knowledge, don't jump didn't do anything wrong in it in the testimony was unbelievable, clear about how much wrong doing had happened, but you will try to pin it on route Giuliani And- and I wonder the point you made of that struck me as a classic like unravelling cover up kind of thing in which a guy who's clearly at the centre of it is no longer denying that the bad things happened, he's just trying to deny that he person, Molly had knowledge of them. You know it's true
credibility at a certain point when he says he didn't know the Giuliani is era. In Ukraine related to Joan Hunter Biden. I mean I knew that because I read about it in a new times: article It's one of these things like cannot prove that ambassador, someone would have run You are time stories about his colleagues work in Ukraine, which he was also involved with, like, of course, I can't and that's one Reason why you know they have to do more rounds of hearings and sorry, get everybody's perspective and maybe ask again about some of this stuff. But it's really different from what you ve seen in some other kind of Crump inquiries. Right people are testifying and they are sort of pointing the finger. At each other, and in this case you know someone like there's a rich guy, he's sort of he's not that deeply involved in american politics over the years, and I think it's clear like he doesn't want to go down over this so visible.
Strange internal structure to the salmon statement. What he's trying to say is that what he and Perry and Boca we're doing is they have the on the up and up view that U S and Ukraine should have much tighter relationships, rather a good policy rational for what they were doing and they were Can I fairly quickly that in order- to achieve this good, solid policy outcome. They needed to go through Woody Giuliani. Lately he says it was apparent on importing. Now it was apparent to all of us the key to teaching. In the president's mind on Ukraine was Mister Giuliani and what the sullen wants to say. He talked about having a conversation, President Trump is in a bad. Moody says yeah and troops as there's no quid pro quo, but what
to say, is that Giuliani sort of operating in a weird rogue foreign policy, rogue not just from from some land and the State Department but Roque from President Trump two on, but but he also says from the president's direction we are faced with a choice. We should abandon the goal of a White House meeting for present Zalewski, which appears what he was trying to get, which we all believed his crew strengthen yours ukrainian ties and furthering long held you as foreign policy goals in the region or good, do as President Trump directed and talk to Mr Giuliani to address the president's concerns. We chose the ladder and he seems to be some are trying to sever this latter path from the president, but its very clear from his testimony. The president ordered him. To go through Giuliani and do what you wanted done. They did it trump did all that didn't know what Giuliani one edge seems like a very strange argument, Tredah put forward yeah, but I mean this is kind of like you know, like my boss, tactics ride like Donald Trump is not good.
To tell anyone to directly put this deal on the table. Read everything is sorted at a distance right if we try to raise with personally like what you doing he's like I talked of Rudy talked Rudy right, and it does me. No. I don't think it's like laws about exactly to put all this way just on the shoulders of Giuliani, but it is that right, like legally speaking, now, unless we get Rudy Giuliani testifying under oath. I was ordered to do all this by Donald Trump, What you have is the phrasing that Trump used on that phone call, which you know it seems pretty clear to me, but you can imagine people arguing at other ways, and maybe the idea that Rudy Giuliani was just running this row. Gob you know is that in any way realistic? I think no, but you know it's tough.
I mean if Rudy is willing to take the heat, we have a sort of long tradition of four guys in political scandals, but Trump himself doesn't seem willing to go right. You don't hear Trump saying of this was all Giuliani fault trumpet. Saying it's fine, so the third storey that I think really matter this week has to do something else. Make me when he said, but something that demonstration has been trying to do for awhile, which I per day It is going to add another article to the impeachment charges, which is that Nevertheless, in the customer has been trying to keep impeaching pretty narrowly focused on Ukraine, but, among other things that people want to put in. There is dollar chums. Ten, see for self dealing and corruption in office, and they have decided to try to run the G7 summit at a wagging Trump resort and dwell Florida? I'm an unwanted play. What mulvaney said we announced that we're gonna? Do the forty sixty seven summit on June tenth through June twelve at the transnational
of facility in Miami Florida. I guess I've been that the chief now for about that nine or ten months- and I always hear whenever we go to moral law- goes a huge, rarely opportune every place, you know at trot more lotta. We play golf. It trump bed mystery ghostly off at trumped up sterling, and everybody asked questions and not a huge marking opportunity. I would simply ask you also to consider the possibility that Tom trumps brand is probably strong enough as it is and doesn't need more help on that matter. What did you think of it I mean what can you even say right and raise in out now corruption and I've been stunned by how much of an under reaction to trumps hotel frauds that we ve had over over the the weak, so over the years as best, I can tell Democrats have decided that this is not. An issue. They really want to focus on and so trump you know, given an inches is taking a mile. You know do too
here. One is for all that Mulvaney said washing press reported that derives net operating income. Declined by almost seventy percent. Since twenty fifteen damages decline attributed by experts to the chump brands toxicity. So what mulvaney setting is saying about strength, the brand is not actually appear to be true, but the other thing here is that this is actually quite classic and peaches Behavior like when you go back to this early debate. When you look at what people like Madison are saying the concern. Chief executive, enriching himself off the public purse. That's a big, That is something they had seen before. A corruption is an old thing and in government and the way which they are doing this amidst unimpeachable scandal. It is such like a like a clear like flagging the cape like waving the cape in front of the ball, that it almost seems like that they just want to escalate. But I We feel it gets the opposite of the wagging of a k bright. It's like this is like a gotcha Clegg.
Does anybody in the Republican Party going to hold Donald Trump accountable if he does something on and biggie Lee Corrupt right in the open, and the answer is no right. That is the answer and I think it gives them confidence to proceed on the Eucharist radagaisus. Thank you very much I give that ended that, on a note of lets a constitutional pessimism, which is to say that there is no possibility of impeachment and removal because of republican parsonage, it may be true But one way or another we're going to have an impeachment inquiry in the house and we're going to have it seems very likely an impeachment trial in the Senate Mitch. Mcconnell has committed to that, and I thought happens everything the discussed is gonna be shaped by forwards. If you go,
into the constitution. He read article two section, for it says the President vice president and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanours. Everything in this trial will come down to the meaning of the term high crimes and misdemeanors. What did the founders mean and if any Republicans are going to move it's going to be because over the course of it they become convinced that in whatever duty they feel they have the constitution and to the founders intent that the activities of Donald Trump Administration fit those forwards, high crimes and misdemeanors. It isn't treason, it isn't bribery, but it might be high crimes and misdemeanors. So the question becomes what do high crimes and misdemeanors mean people think it's straight for the illegal, but that's no
play true. Gene Kelly is a vice president. At the Cato Institute he's a scholar on executive powers ran great books on this topic. Any wrote and I've read a lot of impeachment literature. Now, if you heard of pentastic report on this, and I'll put it in, the show notes is called the indispensable remedy, the broad scope of the constitution, impeachment power and what he'll It was he surveyed the history of high crimes and misdemeanours, what it meant in british law, what it meant at the constitutional convention and how it was interpreted through both early and modern errors in american political life. Genially joins me. Next, we live, a lot of noise between the pings, the dings, the emails labelled urgent. That aren't really that urgent, it's hard to cut through the static zero on the things that really matter just like. We can train our bodies to be better running faster,
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crimes and misdemeanours seems to speak in the language of the criminal law, even though it doesn't seem to make a sense. It sounds like grave felonies and also lesser offences for up to a year in jail, but it really don't have that kind of criminal law connotation me stemming was not understood in the contemporary criminal law. Sets of the hour and offences can lodge uptake a year in jail men more like a career, behaviour in a position to trust yeah. You have this definition from webs his american dictionary in eighteen, twenty eight that has misdemeanours, meaning ill behaviour, evil, conduct fault and mismanagement near its also of now situation in office, which is a term. We don't use much anymore but no, it is distinctly not supposed to be a criminal law firm that certain comes later. If you are writing out for like up again, ninth grade Civics Class, why
Do you think high privacy misdemeanours means translated into more contemporary language? How would you say how do you define it I would say, serious misconduct demonstrates unfitness fur high office or unfitness to wield power. There are couple formulations of people tried that IRAN is concerned, rid of legal scholar. John Mcguinness who tries is objective misconduct, seriously undermines the officials fitness for office, judge by the risks to the republic. Is that sort of thing I mean it wouldn't be? the contemporary understanding of high crimes, misdemeanours, which hey. I think people translate into green this criminal abuses of power that certainly the core of impeachment, but it's not everything that is in, but shorthand high crimes, submiss demeanour,
are serious misconduct dead demonstrates in officials on fitness to hold high office or to wield power. Let's get into the history of how it actually gets into the constitution want to walk through a bet. What the constitutional debate over what offences would count towards impeachment was like how we ended up at the formulation we have now whether you impeach Ben, gets a fair minded, a couple of times through the the Philadelphia convention. Seventy seven first there is a sort of minority motion did impeachment should not be available against the present at all. Moving Morrison another Charles painting and dead. They practically get shouted down by everybody Mason, Madison Ben Franklin, Randolph and on and on and on Gooner Morris actually concedes that ok, I guess this He necessary the term high crime,
two misdemeanors makes it in what did I foresaw later in September? They played with different formulations of how to describe in offences neglect of duty, malversation corruption, and it gets now road in committee in September, to treason and bribery in those famous exchange between Mason and man, sin where Mason says you know, treason bribery, any talks about this in peace, trial is going on in England. At the time of Warren Hastings any says: Hastings wasn't guilty. Trees and this needs to be broader, he suggests maladministration. Edison Objec says that's too broad. It would be like the equivalent to two serving the pleasure of the Senate and then Mason swap it out for high crimes. Misdemeanours is a term of our from british practice and it passes and that's how we end up with the language that we have today,
that. Exchanges often used to say that you know this a real narrowing of the scope of impeach able offences, but the fact is crimes and misdemeanours was understood, understood by Mason, understood by any and with familiarity with, the british impeachment in their ratified convention, whose understood to be pretty brought. It could even include negligence and incapacity, not just what we typically think of now. As you know, the Knicks Sony, an abuse of power offences that so I find this this moment in the constitutional convention, just incredibly frustrating, because when you get into debates about impeachment, but oh hi crimes, Mister there's mean you all often end up in this argument about maladministration, smelled ministration, just busy means doing a Porsche being. The administrator and people note that that was an option and they rejected it, but then they move to high crimes. Amiss
minors, and, as you know, in your paper, there is a law book there. All using black stones, combat terrorism, the laws of England, a medicine says like this book is in every man's hand, motion and it uses maladministration as the first example of a high misdemeanor right as others, his way in which they move from a recently vague term to another recently baked term. It seems to be at least two times inclusive of the first one, and so people often want to say that in moving maladministration, high comes misdemeanours. Remove from something that could have just been impeach for poor performance to impeachment to a much more severe abuse of the public trust, and yet it seems to convey the idea that or include the idea in contemporary usage that poor performance could be an abuse of the public. Are so in your view like what do they think they were doing in making that move like what was a difference to me
Listen, I guess he thought it narrowed it somewhat that high crimes, misdemeanours would include not just simple negligence but gross negligence, something outrageous, beads, Clear Madison thinks it's narrowed somewhat, but he still complete since I, shortly after about how broad high crime to misdemeanours is as a description of what you can be impeach for. I think people put too much weight on this exchange, because medicines knows her secret for the next fifty years they ve never supposed to be the guide to the inner understandings of the framers. You know what what the ratifying conventions had in front of them was. The tax, not Madison's notes- and you know, high crimes. Misdemeanours was understood to include certain forms of maladministration and gross negligence. So I think that what that's what matters- and you know if it does matter we're not
trying to channel James Madison but Madison pretty shortly afterwards in the first Congress, says that the president can be impeach for maladministration their debating what authority, the president has to remove officers the first Congress and somebody says well what, if you know, figure the power to remove the Secretary of State, for a reason he wants what if he starts getting rid of good people and Madison says, while he could be impeach, you're move for an active maladministration like that, so it would also be a strange resolved right. If you have you know you can remove the president, if he's a crook, if he abuses power, but not a firm, is negligent to the point of endangering the public. Try students and the body politic. I wanna go into how impeachment is used in those early years of the republic, but our whole in this ambiguity for one second setting its important tat to understanding this debate here comes a misdemeanor seems technical, very much isn't is interpreted.
In many different ways, even by the founders in the immediate aftermath of the constitutional convention, and so it creates this. I think flocks in how we understand preachment today so Gerald Ford famously says that unimpeachable fence is whatever a majority of the house, considers it to be at a given point in history. I think most people want to see that's not true and to some degree it shouldn't be true, because impeachment defence does have some definition, but it seems to me that in american history were constantly groping for some kind of standard we can rely on. So it doesn't come down to our judgment in the moment, influenced by political power and the shocking for political position, and yet there was no easy standard. Give him like that that that there's no independent tribunal handed it there's no pure definition, and so your constantly and a fight over whether or not the judgment of other, not something as I come. Misdemeanor is just the kind of pure power Judgment Gerald Ford is point
to their or it is somehow constitutionally and founder and framer blast in the way that people feel would give half to something is grave, is impeachment or right, I think, we'll find it really frustrating right because figuring out what the original understanding of high crime to misdemeanours is leaves you with a lot more grey areas than black and white. I think Gerald Ford is wrong, in the sense that you know if the house decided to impose in the Senate to remove Donald Trump for having a bad comb over our scotch taping the back of his tie. It is probably the case that the Supreme Court would not over turn impeachment removal on those grounds, but it wouldn't make having a bad comb over a year? high crime in misdemeanor, so you know the text doesn't say eagerly.
The president, whenever you get a majority, the house and two thirds of the Senate, but you know impeachment his part law in part politics. What the constitutional law part of it can answer is. Is this a potentially unimpeachable offence? Is this the sort of gross negligence abuse of power corruption in office that is in the neighbourhood of the original understanding of high costs, two misdemeanours. It can't tell you whether, for any particular high crime misdemeanor, the impeachment removal is a good idea. That part is political and one hopes is political in more statesmen like sense than pure partisan politics, but it turns out for most people to be really difficult, too abstract themselves. We put themselves behind a veil of ignorance, because we always know what particular present it is in. The crosshairs turns out to be really hard for people to you to any particular standard that
and shift from one president to another so thoroughly has other public mamore closest to the ratification of the constitution and so you're dealing with the original understandings who extent we can work. It's considered unimpeachable offence, you don't people talk about impeach the precedent, and it seems to me that these early cases there are three impeachment soon bout. The roughly fifty in years after ratification ceased to me. These early precedents, which are contemporaneous with the generation that ratified the car petition there. What you should really looked to see what the original understanding a you know how this term was understood and applied studies Anti. Ninety seven you have one senator and two federal judges that are impeach. These are the first three impeachment cases and of the these three cases. Only one of the three parts did anything, that's even remote could even remotely be called a crime and the first federal officials to actually
impeached and removed from office, is a federal judge. This happened in eighteen, oh for federal, Judge, John Pickering and his offences essentially showing up the work drunk ranting like a maniac from the bench, not a crime but he's removed for red eyed ticket to the phrase was high misdemeanours, disgraceful, to his own character. As a judge, then you have, You have also were spring port justice, whose impeached, but not removed justice, Samuel chase his main offence. Is partisan bias from them the bench a lot of it centres around data grand jury instruction that he gave was it really a federalist rats? They serve the b
is viewed in the history of a peach. Men is the Jap Estonians. Overreaching would be terrible if he were moves for something like this and why I think we want to be careful with judicial impeachment. Imagine justice, Cavanaugh ranting from the bench about the deep state or you know, going out on the campaign trail for Donald Trump. Part of the reason these norms exist is because of the chase impeachment again. What I think these three cases show is: you're, not looking at criminal offences in and for the most part, you're. Not even looking at abuse of power in the the to judicial cases, it's really conduct incompatible with the proper purpose of the office in something that undermines confidence in the persons ability to to hold this high trust. Yeah. I was struck by this congressional research service report and twenty fifteen, which says it over. The entire
Many of our constitutional history, fewer than a third of the impeachment approved by the house, have specifically invoked a criminal statute or use the term crime like that. To me really puts to Russia the other. This is primarily about what legally consider crimes, but you talk a lot about and I can simply for port from House Judiciary Committee about the grounds for presidential impeachment and they say that when they looked at and they did a pretty conference of job of it- that it really always fell into one of three categories is an abuse of power. It was using once post for personal gain is behaving in a manner gross incompatible with the proper function and purpose of the office, and I have to say that I read that paragraph in the report and I felt that seems pretty spot off. I guess who's pretty descriptive, we're looking up yeah. I think there is a weird aspect to the impeachment debate. You know, there's been a lot of impeachment talked starting trumps election, if not before it is where the
driven a often, although probably not in the most recent case, with the Ukraine phone call, but were you driven into these hyper legal discussions of you. Don T, statutory basis for obstruction of justice in in federal law, or did the President violate campaign finance law by arranging for a pay off of of an ex mister? this is not really what the early and patrons her about it. It's not really what they're supposed to be about, and impeachment debate about, Donald Trump, that really was. System with the original understanding of this clause would be focused war on, you know his public conduct he's a lack of impulse control is inability to act like a grown up in a grown ups. Job fact that he makes people nervous that is so close to the nuclear launch codes
a lot of it would not be centred around finding a smoking Gunnar, a esteem dress. It would be about his twitter feed and how he talks it press conferences. So I think we ve really move towards. I caught the over criminal of impeachment, where contemporary impeachment debates are often your left to lawyers, and you sort of expert witnesses on what a reasonable prosecutor would do. That's not inquiry it all and in fact the House judiciary, Maybe one example this happy, even when you win resident is is impeached for something that involves a crime, for example, the house, judiciary, committee and obstruction of justice. The article voted on instruction of justice had passed against Richard Nixon. It made clear in.
Report that it was in a matter of crime that was different. This was abuse of his oath of office in ease oath, to ensure that the laws were faithfully executed, not whether a technically violated a federal criminal statute. There's another thing that I can seventy four port that I found helpful, which is essentially a substantial, less still talk about that yeah? So this gets a little bit to the idea that in impeachment is a mixed operation of long politics and the con walkin sorted answer. Some of the basic questions resolved
something's into black and white, but there's a huge grey area, for example, can constitutional analysis can tell you whether obstruction of justice is unimpeachable offence? And it clearly is Europe, so we have the most presidential precedent for, for one thing, what it can't tell use whether any particular case of obstruction of justice is substantial, enough if it merits this remedy. For that you don't need legal analysis at all, so, in a contemporary debate you'll analysis, can tell you. Using the powers of your office to screw your political enemies. The bar the phrase from John Dene is unimpeachable offence. It can answer questions like what What if we were only twelve months away from the next presidential election in there, maybe another means of dealing with this problem. That's not a question the lock in answer and
substantiality that sort of an hour. This is sort of white people thicket collapses all into politics, because you do see people line up behind there. You know whichever shirts and skins ready blue team, but that that in itself is nothing new in Hamilton predicted that right from the beginning, but I understand why it's frustrating did you know that there are a lot of black and white answers? This isn't like fish, at what commerce. Among the states, Interstate commerce meant in seventeen. Eighty nine, this LISA more grey areas, but eight, in another way, I don't see how it could be any other way for the same reason they debates over the night. The moment you could never enumerate all the rights of man. You could never enumerate the unanimity
issues and broad enough to figure out every abusive public office that people will be capable of. So you could never write in impeachment code that did covered all the bases, so we are inescapably thrown into politics. The recent I bring this up is that I think it gets is a bigger point that you ve been making that that I make sometimes and that I think, is important to dredge out into the open the impeachment debate. There is a background question of how horrible you think impeachment is as a remedy. And if you think impeachment is a really horrible remedy right that it's a stain on the country that is divisive in a way that will terrorists a part that is to be avoided almost at all costs, then you get into these questions of trying to set the bar for what my count really really really really high and something that I think make
you and give you an me slightly heterodox view on this, and I think we both believe that impeachment should be much more normalized power that the fact that no president has ever been impeach then removed from office in american history, though you can argue about the Knicks imply, would have been eventually if he had resigned, suggest, maybe we're using impeachment a little bit to sell Lee and that the way in which we treat you use it is explicitly in your peace, have set it in and other pieces that the way we treat the president is too for some recent give the person with the most power to do harm the most job security of anybody country right. It's like the newborn child, the United States. We have to commit a felony to be removed into its also the one job where you get nuclear weapons, yea You pointed this out in your piece on the case. For now realising impeachment a couple years ago. Yet I end as these, in a peace, so I think we should look upon it. You know not is a regicide over
deep, wounding of the national fabric that more like putting somebody out of a job. We seem to be very comfortable compared to other western democracies. The were probably more comfortable than in most countries with the idea of firing. People do. You know it's employment will from for most of us You know, unless you're, in a pretence, some sort of protected category of Europe see. Oh you Annabelle employment contract with a contract is getting often include things like moral turpitude, and you know negligent performance but where you go up, the the latter and get to the president. The most important job in America suppose Lee and the hardest wanter remove some one in mid term aids. It seems to me that that's crazy, we should lie, get this more as getting
If someone who's not performing or someone who is, can do a lot of damage- and we should be so actually about it strikes me is right: Lee bizarre dead. You know we're having made This conversation that the presidents of the White House Council put out this thing about how there needs to be even more due process, even at the the house level, in an impeachment to protect the president, meanwhile Doll trumpet Guy who's claimed fame. You would thing it made him nationally famous problem. More nothing else was a television show where his signature line was you're, fired, Why are we so uncomfortable with the idea that you can fire a non performing or abusive chief executive before his official?
the term is up. This seems to me to be something where, if you looked our system from the outside, you say a genius of our political system is it we have made such that impeachment does not change the party in power. It just changes. The person so if it is a decision between left and right between Democratic Republican, that is such a big job you can understand why a party would protect their president at all costs, because you dont want to sacrifice everything that having a co, partisan power would give you, even if that person has committed a grave abuse. But we don't do it that way. It would be, in this case my pet sob, who had come to power and under Bill Clinton. It would have been Al Gore and you can imagine parties looking at this. As you know, the president's serves lilies, partly at the pleasure of the Congressional Board of directors and part of the deal. The genius of the system is always somebody waiting there to step in rights so that we actually have the capacity to whole people too
for performance boy. Don't look at like that. It's treated as a very binary, yes or no left or right like are they gonna win or we gonna win approach and I'm curious going back who does early debates and going back, tell you in a federal. Sixty five were habitant speaks a lot about the problem of party and how the Senate is gonna, be above it I'm curious how you think the founders would look at the impeachment power as a place out now in this era, when parties cooperate across branches as opposed to branches compete with each other fur, eminence well, they didn't turn out to be oracles on on everything. You know the rise of political parties. You happened faster than than they thought it would and some of the early impeachment, sir. You know the particularly when Jefferson is president their highly partisan, partisan, impeachment, Sir sort of with us from the beginning. You know Hamiltons prediction turns out to be
you no more more right than he could have known the further the further on we go. I think they would have been surprised at how few presidential impeachment therapy and because the in general were not that anxiety about presidential impeachment snow, Wanted them to be done is frequently say we do government shut down today, but you're. No one thought it was this absolutely fraught undertaking. I think you'd, be surprised at how rarely we ve done it, but impart debts- it's not just because they didn T predict. Political parties arising in quite the way they did and when they did it's also because they really give a lot of thought to the Super majority requirement in the Senate, and that combined with the political parties and partisanship, has
made removing a President Santer trial virtually impossible? I mean the Republicans couldn't do it the Andrew Johnson impeachment, despite the fact that they had over eighty percent of the Senate majority. In part. This is because you know they they didn't see clearly what the what the implications of the machinery they adopted would be genteel. I thank you very much. Thank you found us thought that impeachment was the indispensable. Many that we needed it as a possibility to constrain the behaviour of the executive to remove them if needed, but to constrain them, because we have a fear of removal. What would she said at the end of that, in our view? Is that the way Impeachment is constructed, and particularly given the weight interacts with party politics and party incentives. Now it may be
dispensable remedy, but also impossible and on a hold in that concern for a minute? Something that keeps me up about this story is that as a scheme, it came so close to working. If you read the conversation, call record between Donald Trump in the President of Ukraine. You can see the present Ukraine repeatedly agree with Trump. If Donald Trump was employee a little better at this. If he were, a little more discreet. If he just this up to his underlings. It easy to imagine a world day, we woke up and on the front age of the New York Times a story headline beckoned Bobo, would say Ukraine investigation into Hunter Biden, Joe Biden son I made- They would come up six eight ten months from now when Joe Biden was the nominee for Democratic Party for President in May
that would have been enough in a close race to toss it to Donald Trump Donald Trump had the our in this office to ask a lot of Ukraine and he did from all we know, and it would I've been hard if they are a little bit more strategic. If the people executing us for a little bit savior, if don't jump, had not made some these demands so explicitly. On calls with so many other people listening in for the scheme to work, if this goes unpunished, if this becomes cleared right, while he wishes investigating corruption nets with Donald Trump, thought. The national interest was, then the message we are sending to Every president comes after Donald Trump. Isn't don't do this is to a better it. Isn't that this kind of behaviour, this kind of activity is outside the boundaries of american politics outside
What both for publishing Democrats are going to permit because they know that at present could use it against them right because behind the veil of nickel ignorance. They know they will not hold the White House at some point. Somebody else will and they have. Kind of behavior, is ok. That could be it for them if this is protected insulated from consequence, if impeachment become so hard User publicans, assuming everything we know, continues to be proven true, if income so hard to use that even this behaviour copy punish Well, then, what we are we are creating a new capacity and american policy. For creating a new tactic and american elections in a way that, I think, should make us afraid. I comes. Misdemeanours means fundamentally abuse of public office. Amines abuse of power, there's no more important abuse of power that you can have in political life than the abuse of power to keep and maintain power,
because if we are to be a democracy for to be a country that actually has competitive real elections and accountability, then power has to be more horrible if powers to allowed to a massive fortress unto itself, if power can be used to make it snobby can challenge power, will then power becomes unaccountable and then this whole constitutional architecture? We ve set out this whole theory that we built the country that was able to stay away from mistakes of the past collapses in itself. I was working on this issue. Impeachment explained. Impeachment explained is hosting I mean it is produced and edited by traffic held researchers, Russia, Karma Engineers are Molokai Brutus and Jimmy Damas De Music composed by John notches us. Why thank Liz Nelson, we'll be in your feeds? every Saturday I hope you enjoy this only subscribe,
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Transcript generated on 2021-09-10.