FiveThirtyEight: The history of impeachment

This special edition episode discusses the history of impeachment and breaks down what comes next with ABC News contributor Kate Shaw.
42:18 | 10/12/19

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Transcript for FiveThirtyEight: The history of impeachment
Hello and welcome to the special edition of the 530 politics podcast on ABC news live over the coming weeks and months we're going to be talking a lot about impeachment and so. We want to take a step back. And look at where the idea of impeachment came from a regionally from the framers. And how it's been interpreted since that this is my interview with ABC contributor key shot she's a law professor at Cardoza university and knows a lot about this. We have been planning to talk about this topic anyway but president Trump's lawyer pat simple Loney made it particularly pertinent in a letter to house Democrats earlier this week. He wrote that Democrats impeachment inquiry is unconstitutional. For numerous reasons. Including that there hasn't been a house vote on it. And that Democrats aren't allowing the president dew process. Some Bologna clarified that the White House will not comply with subpoenas war allow employees of the executive branch to testify. That letter was panned by legal scholars of all persuasions as not based in American law. So how exactly is impeachment supposed to work. And here to dig into that would mean is ABC news contributor Kate shock. Welcome thanks for having me Kate is a law professor at the Cardozo school of law and also co host these strict scrutiny podcast which if you're watching this on ABC news five you can tutor. Wearing a lovely districts due to its strict scrutiny T shirt outcome of the contest and have to use these as cross promotional opportunities absolutely I totally appreciate that a anyway thank you for being here and we're gonna get to that letter but let's kind of start to win it. A big potentially loaded question right. So section two article four of the constitution which describes impeachment reads quote. 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 misdemeanors. What does that mean. So the phrase other high crimes and misdemeanors is obviously disrupt the most important countries in the constitution that details of impeachment they're actually bunch of different provisions that have to do with an of the procedures for impeachment. On their spurt giving the power of impeachment of the house and and the power to trial impeachment to the senate. The ears the requirement that he two thirds supermajority in the senate vote to convict. And and that the consequences of impeachment will be limited to removal from office and potential disqualification for future office holding so there's all these sort specifics that. You aren't that hard to Parse write their actually pretty clear but then the language that is the hardest assist other high crimes and misdemeanors. So you know I think it's hard to give a releases and insert as or what that means it's a contested question right people disagree about it. But a Middleton a little bit about how it ends up in the constitution that yep I am. And so there's tons in the drafting history about it there's initially some debate about whether there should be some mechanism for removing the president at all. And if so what that mechanism should be who should hold the power and nurse like some pop in maybe the Supreme Court should have the power of impeachment or a majority of state legislature should vote to impeach the president but they quickly decide. Note to be congress to to be the house and in the sense that those parts they sort of sort out pretty quickly so then the big question is. OK so then what is look what kind of conduct could lead to impeachment and removal. Un and initially the language that's in the constitution and at the convention in tune of 1787 to get real detailed. Is impeachment should be available for malpractice or neglect of duty. Kind of broader likening it is not doing your job or something. There some concern. And that maybe that's wrong. In that it's too low of the later take corruption out we have no real explanation as to why leaking just trees and or bribery be then and Natalie administration. Essentially you know just doing and other another card out of touch aren't combative really about your job. On and Madison whose you know one of the most important tracking the constitution of checks to that he said that's so they get it to be equivalent to tenure during flasher. Of the senate so the senate just doesn't Le cure the what you're doing her job they can remove the so that gets replaced some so treason and bribery stay Mal administration gets replaced with high crimes and misdemeanors. So it's about the language -- you know we inherit and what does it mean it you know it turns out there are some. English kind of common law in deceit and this is a freeze and kind of a term of art under English common law. And most historians and scholars I think seem to think. But basically what it means is abuse of office committing the kind of misconduct that requires some public position to connect so high crimes and misdemeanor shouldn't be understood as like. Really really bad crimes and misdemeanors but the kinds of and misconduct and abuse of action can only happen if you hold some public office so abuse abuse of trust sort of you know this idea of corruption that was in the original version. I'm but not just being really really bad at your job. What are people who thought that there should be that this would happen in the judiciary he should be applied to. Crimes and we should use our federal criminal code in order to adjudicate what is impeachable and what is not. Well you know is so so there's there's let me unpack the questionable that in in terms of the there have long been debates about the meaning of high crimes and misdemeanors and there's there have definitely been factions that said. Yes you should be able to point to something in the criminal code that has been violated an order to successfully mount some sort of impeachment effort. And presidents president Nixon's lawyers made that argument in 1974 and president Clinton's dollars make that argument that that things needed to be crimes and we. Is that usually just you know the president's legal counsel when they're facing impeachment of believes that or are there are legal scholars who study the constitution and who say. No it has to be a federal crime. You know yes I think there are will be there are scholars who think that I think that the we have scholarly thinking is much more in that sort of the first camp I described it these are political and has and they don't need to look like crimes. But industry the way that impeachment is a good look at impeachment history the way. Impeachment was charged both. Against Nixon now Nixon was never impeached by the full house but that Judiciary Committee did approve articles of impeachment against him. And those looked like criminal offenses and so did the bribery and obstruction of justice charges approved in house against President Clinton. And so that that you practice has largely reflect about the the question is is that because it had to or because they're just was conduct that happen to track. Particular can be authentic and I will say the first presidential impeachment of Andrew Johnson. Charge conductive really none of which really violated any particular criminal statute one thing I will say about the kind of criminal. Analogue is that there are scholars who think even if they don't think that high crimes and misdemeanors have to be specific federal crimes. That there should be criminal type protections that the president as defendant should enjoy. When. Going through an impeachment trial the house it's a little trick you're like what you know it's not a trial anyway but but that is important just as a matter of principle but it is. You know it is crime that you had is analogous enough to criminal procedure that we should think about. A defendant as a joint between the same protections that are criminal and it would even if you don't. Except that. The conduct charge has to be criminal. And is that also in the house where kind of impeachment gets voted on not just in the senate where there's an actual trial and conviction like. President Trump's lawyer was making the argument that you know he should have his lawyer should be president present when people are being questioned as part of house inquiry. Are there people who backed Kim Obama or is that also. I think it's definitely in question I mean I think it at a very proud level of generalities that there should be some rigorous procedures in place in the house. Think that's that disputed a proposition that but whether the specific demands that are outlined in that present the what house counsel's letter from earlier this week. I don't think there's a lot of support in law practice for all of them out. It is generally the case that the house has a lot of control over how to run its own impeachment process. And that these kind of questions about the protections for the president. Seem much more to be triggered when it comes to a trial in the sent. At this moment how much did beat. Is there in the legal community over whether the evidence that is already available about president Tribe's relationship we have the president of Ukraine and pressuring the president of Ukraine to investigate the Biden's. Whether or not that is an impeachable offense is there are some kind of consensus within the legal community. Q I wouldn't say there's unanimity but I do think there's pretty crossed ideological consensus that. That there is a lot of evidence here that would support at least one in May be multiple impeachment charges that. That this is that if impeachment is about abuse of office about misconduct. For pinot personal gain. That can only be engaged in by virtue of holding a particular public office if it's about self interest over public interest of all of these things are kind of the absence of impeachment. All that seems to be basically to the letter satisfied by the allegations and we seem so far although I think that you know. Scholars and lawyers generally. Do think that more evidentiary development would be optimal now. There is a real question about how much the house is going to be able to even get access to but but it does feel like there are more facts that are worth find. We talked about some like disagreements within the legal community on impeachment what how big is that spread they give we're talking about impeachment again more generally. You know ardor people who think that use. Should be able to get impeached for it like petty crimes and you know like Jay walking or you know not paying your parking ticket I don't even know if that's actually a crime anywhere but Blake. The verses what else it was the spread in the legal community. I I think that so I think that. Most people a so so there's just very classic tax on impeachment from 1974. By professor Charles black and he acting makes the case then again most people seem to accept that. A specific criminal act is neither necessary or sufficient to warrant impeachment so there are definitely currents and yet really serious parking suffer traffic. Violations and presence don't drive much but occasionally do so really bad traffic and a moving violation. But be criminal and should obviously not be impeachable. And so that's sort of one end of the spectrum and and then there are things that are clearly not crimes. In an example but another law professor Gibbs is a president who just literally doesn't show up to work for six months. And it's not anywhere near election and I think that's not criminally either you know you can notch have to work but obviously would warrant impeachment. And and then at you know and then there are things you can do as the president. Sort of you know abused power rates or grant a blanket pardon say anybody who you know like. Promises to vote for you for your reelection. Or you know. Going to currents of the registered Republicans in federal prison replica can there's nothing criminal about doing that happened it's obviously an abuse of power another example that in a lot for circuses. Per kind of non crime potentially impeachable. A promise not to appoint anyone of a particular religion to public office read any temple he gets his Roman Catholics are examples and Muslims. President say makes a promise and then follows through on it. The teens obviously people again not criminal there's not really any other mechanism could force the president to appoint any went office and so. Since it was announced you know if there's not really any other way to address a particular kind of misconduct. I'm but I don't think there's anyone who really thinks to go back your question that any crime no matter how to regular petty should be. Impeachable I've. Heard this line that. This may be an impeachable offense what president trump has done in terms of pressuring the president of Ukraine and to be determined the extent to which military aid what's part of that it may be an impeachable offense but it doesn't warrant being removed from office. What does that mean I know that may not be like your tickets are asking you to describe somebody else's position but is that a like a legitimate. Position to take what does that mean. Yeah I mean I widow I gather that mean something like. It should be subject to some kind of public sanctions something like a censure. But that it doesn't warrant removal and that I guess impeachment and house is what that who that sort of school of thought is is using a shorthand for. Kind of censure and censure has been an alternative it was very much you know he formal condemnation of the president's conduct that was on the table. In the Clinton impeachment proceedings and ended up it really going anywhere. But you know some kind of formal expression of disapproval is important but that. This Condit doesn't rise to the level from the get just the constitution doesn't make any distinction right it should be the case that. You know everybody in the house and everyone in the senate like members of congress take an oath to uphold the constitution the constitution just has this once or unitary standard or high crimes and misdemeanors. And the house I think should impeach if it believes that the president has committed high crimes and misdemeanors. And does senate should convict if it Pina reaches a team conclusions I don't see any kind of like. To listen in the standards and and really should say were overly focused on crimes and misdemeanors that bribery is a separately enumerated impeachable offense in the constitution. You know it's so even if you sort of said book nobody can decide what a high crime or misdemeanor is and you for your hands. At least there is it plausible case that you know should additional facts emerged. This could then exchange of you know a promise for military aid for a promise to aid in you know digging up dirt on a political rival. Is a kind of a bribery or extortion offense that actually is separately. Subject to impeachment the constitution. I want to get into a little bit about. Blind the constitution is left vague when it comes to high crimes and misdemeanors. But not everything in spelled out literally in our constitution and as you mentioned. There that's in some ways can be an asset because the founding fathers framers couldn't think of every possible circumstances under which. A president may not be doing their job as intended by the founders. How much of our constitution rests on those kind of unwritten rules or norms or kind of I guess yeah ways of doing things that are not spelled out explicitly. Most of the important provisions of the constitution are like Africa there's some oddly specific parts of the constitution. That the president has to be 35. And then you know an inauguration is at noon on January 20 I mean Rick really lets in the constitution. That's been upped her passage of power from not going to an incoming president happened so there's like. Bees and their of these sort of moments of real specificity. But most of the constitution's important provisions are broad and general equal protection of the law due process of law the freedom of speech. So you know I I don't think it's an usual that this. Importance or constitutional phrase is one that is subject to interpretation in like every other. You know constitutional provision of any import. They kind of intervening experience sort of flesh it out and gives meaning write to these otherwise fairly open ended and opaque terms and so. I do think it's important to look at what impeachment history shows right so it has always been the case that the Supreme Court. If you know and I should say Mikhail faculty is always been a case that we have. Understood practice to help fill in some of the caps of the constitution leaves open and so we have had a few presidential impeachment and we cut other impeachment of non presence because of course. It's not just the president the constitution says the president the vice president and other all of other officers of the United States. I'm shall be subject to impeachment and removal on conviction. So so they're you know there is some history here has. The legal conception of the purpose of impeachment and why somebody might be impeached has that evolved over time or are we still pretty much in lion waited. What the framers intended. I think we will we will have to see how these proceedings play out with respect to president trump but I think that what each of the three presidential impeachment experiences that we've had has shown is that there is. It was some of the stuff is contested in that there will be presidents will make arguments. That four. And and yet the way to think of authority even you know there wasn't tons of debate about this and every moment in our history read I think that in the 1970s are real flowering of kind of scholarly thinking about impeachment what it was four and and how to proceed and then again in the 1990s that the Clinton and token you know we're sort of in this third golden age I guess of really thinking about it. But I do think that. Since the seventies these that the kind of general description that I gave of impeachment answered for political misconduct. And has been does kind of at least. Kind of dominant view but subject to lots of sort of debate and also questions about sort of you know what proof standard to be how sure should members by the house where the senate being. You think about this is like some kind of proof beyond a reasonable doubt standard or something a legal standard called clear and convincing evidence or. Just a preponderance of the evidence of his different you know. And there are tons of little procedural questions like that that I think are very much debate about would say and you might find others who disagree but I would say that. The cut ties to the sort of core purposes. There is a broad if again not unanimous scholarly consensus. We talked about. This on the podcast when we actually discussed Brecht sick and the British constitution does not written down and sort of whether that means that Britain doesn't have a constitution. Does any democracy literally write down every wave it. The government is supposed to function and no of course not clear constitutions that are much more detailed and much longer than ours are lots of constitution's at half tons of enumerated individual rights protections. You know things like right brits to you know to clean water and year end. You sex equality and health care and. In many of those places those are sort of you know ephemeral promises aren't actually implement it in practice so. I think that you can have an open and a constitution that leaves a lot unspecified and a sort of society in which. There actually is expression given to a lot of those values are actually written into the constitution and of course the converse as possible he could have an extraordinarily Tito constitution. That in fact bears very little relationship to to with experience of people who are governed by and so you know I think that it's. He that that the written document only does so much either way yet. One thing I think we've mentioned on us podcasts before and always is just like really striking today here is that. The right to vote is not. In the constitution that's kind of part of our norms that has has. Didn't lived out over centuries by and has evolved over centuries but has not actually in the constitutional you know I'll say look it's that there are rights against denial of the right to vote on various species on the basis of race on the base that sexy at the fifteenth amendment in the nineteenth amendment to these amendments. But be right beeped and so they Beatles we scholars are Zabel look all those things presuppose there is this right they can't be abridged. On account of these characteristics but you Chris you totally right the actual write itself is not. In an affirmative way present in the constitution but again the whole document resumes at cycle and this is I think another example of sometimes the meeting business of this sort of the written this or not. Of particular counties in the constitution. Will be right. We're back with this special edition of the 530 politics pod cast on ABC news lives and we're talking about the history and the law behind impeachment. It's an and is planning and we're going to be talking about it in the weeks and months act. So it's important that we get our minds around what exactly was intended by their framers when he wrote about impeachment in the constitution. And how it's been interpreted sent this letter from Trump's lawyer that I mentioned apt the top. It made some pretty big claims about the law and precedent surrounding impeachment. In your estimation what are some of the mean claims he. You know I think the letter did feel to me and I think a lot of scholars felt the same way. Like a political document and not a legal documents so it's not making many. Two or traditional legal arguments for it so there's a lot of and this is outrageous and unfair and that president of nothing wrong it was really legal arguments of some of the specifics that are identified in terms of you know sort of support. Such as it goes for this kind of unfairness and Kramer you know at this point that the president has raised repeatedly at there's no house resolution that's been passed. And you know look I think it is true that there were resolutions passed in the three previous made is definitely true at their house resolutions passed in three previous impeachment effort. You know the house has total control over how to structure on proceedings that is actually in the constitution how shall control the rules of its own proceeding so. For the White House to tell a house how we need to go about doing something that the constitution gives that the explicit power to do which as you know to. I'm the power of impeachment. I think it's pretty unsupported. It's literally like saying every previous presidential impeachment effort began and a thirst Aaron. And liked it that might be true but it's kind of a relic and rent if its not required invite yet or source of law that they start on Thursday night when he started but it feels. You know roughly like that in some ways like the you know and they need manufacture some other objection if speaker Pelosi does decide to pass resolutions. As I think that would probably McCartney wants to do. In part not because. Of this insistence on the White House part that that it has been done previously. But actually because in court battles should those come to pass over particular document and witness testimony. I think a court actually need be more inclined to side with the house that is acting pursuant to a resolution passed by the full body. Rather than a single committee particularly because we are in this. I'm situation now with there are a bunch of committees. And there could be multiple requests for documents from all the countries I do think kind of pragmatically. It does make sense that this can for this because it's been done before must be done now Oracle enterprise religion I think is quite unsupported. And some of these other factors like the president should have the right to cross examine witnesses. And neither should have access to all the evidence and all kinds of information that they say is part of due process in a regular court. I mean is that also similar to what you just described the White House saying this is how you should go about it. But is not actually necessary in order to conduct an impeachment are is Derek are there more grounds there. So and I will say that I haven't. I have not tested as the particular claims that the letter makes against the house proceedings and in the previous presidential impeachment efforts my sense is that they are vastly overstated. And the degree which all these procedural protections were afforded in the house. And that most of that has previously arisen in the senate now look with Clinton it's somewhat immaterial because. There was this independent body he write the independent counsel Ken Starr did really all the fact finding handed a report to the house. And house did you had start testify and it's a little bit of additional factual development but. Beer very very little essentially just voted articles of impeachment pass over the senate and there was much more Protestants and and of course the president's lawyers. Intimately involved in everything that happened in the senate enters you know called witnesses and to cross examination and all of that so. So again. If I I I haven't been gone back to historical record and compared it to be to this letter. I'm close enough to make any like really strong claims but I it strikes me that the the general arguments being made are much more applicable to the senate and to the house. President employer made clear that the White House doesn't intend to comply with subpoenas that employees the executive branch may not show up to you give testimony. How does this compare with our past presidents have responded to use these. If this is pretty uncharted prime past presidents have been far more cooperative than this I'm. And you know and been so so soul sick opens one. I wouldn't take this letter has the final word from the white house on what their cooperation will be I think that it's important not to underestimate how important kind of public. Pressure and public opinion is on shaping the course of impeachment. I mean look you know the fact that the White House as quickly as it did. Released that summary of the telephone call but allowed the whistle blower complaint and a testament from acting to unite all. Be made public. You know. I'm but another is that they actually felt like that pressure was too powerful to resist and at that they had to soak. And it's and I think there's been a may be some of each is the real explanation. And and so I think that if sir of public pressure grows for more cooperation than we've seen so far. Then. The White House is response could really change I mean look like in a President Nixon obviously fired the first special counsel that was investigating Archibald Cox. And the public. Reaction was so negative and so strong. And so swift that almost immediately he agreed to limit of a new special. Prosecutors so I do you know he didn't go into this firing assuming that they're being a special prosecutor who by the way got more investigative powers in the original one did. I'm so so I think that all of this is just incredibly dynamic but but it does sound like at least the position the opening position of the White House is one of. Total non cooperation and stonewalling. If it were to maintain this position anti you know borders and are gonna give you any information you're gonna court records what does that process look like and how long would it take if this adds up out the Supreme Court. So. You know historically. The congress. Would itself so first they need to issue subpoenas. And as a historical matter they're really three routes to enforce for a congressional subpoena to be enforced in this is really the only about the congress uses in sort of the modern era. Is essentially just to go to court and trying to enforce its subpoenas in court. And and that's you know and that did the last couple of disputes between. Congress and executive branch to get executive branch official testimony. Have resulted in victories for congress and actually there's an us or just district court opinions. Bunt. Day he suggest that you know. That actually congress is a pretty strong position is trying to have as a really good reason it's you know conducting an investigation that's these two relatively recent examples. Or you know it's in even stronger position it's conducting an impeachment inquiry I think. Pretty much everybody believes. I'm so that only real issue then is where there's a few issues but one big one is it just takes aim for a disc judicial process to run its course. I think that courts would be. Willing to move much faster than they ordinarily would if Dick if the house sort of moved quickly to. An answer bringing the courts in this and again that's way actually to think it has been a full house resolution would strengthen the litigation position house. Because you know the presidencies can assert some constitutional privilege. Which is not even really with the letters about typically like that's the way that then White House would resist request for. Say communication between president and foreign leaders the president and his staff is to say this is executive privilege as a constitutional. Shield that keeps all these kinds of private communications from congress or no from other high interest to parties. Citing an Internet that's is how this would probably has congress asking a trust him for a subpoena in court executive branch invoke some kind of executive privilege. And courts just kind of balance and you know get a house. Pat resolution it's in an impeachment inquiry this evidence is critical for reasons that they'll explain to the court. No second appropriate isn't absolute it's a qualified and upper span provides a clear in this Nixon tapes case. And so I think there's a good chance the congress wins the question is just how I how long could. Nothing like mystic I know it's hard to say because it's up to the court to your house to go through several levels of courts and they continue once they want but. Any idea. I mean look if the if if a district court quickly ruled in favor of congress. The trump Justice Department has shown a real propensity to try to LeapFrog the intermediate appellate court in cori to the Supreme Court. Typically because it thinks that you know it's got a Supreme Court that's pretty sympathetic to its interest and so. I can see it you know of that the house decided to try to. Enforce a couple of subpoenas next week. In court like it's just a quick opinion within a couple of months it by December and then if an if it's an opinion and first the president the president's team going rate to the Supreme Court. And the Supreme Court sort of you know deciding to decide deciding to decide quickly because of the stakes and the fact that the president as a party. In theory by early next year something could be good for has been part that's an aggressive prediction but I don't think it's impossible. And that also is still not even in line with how quickly the house wants to move on this you know some Democrats have laid out an agenda that would have. Then voting on articles of impeachment before the new year. So it will be interesting to see how the house ways its priority of trying to make this happen quickly verses you know trying to get. Evidence and trying to get testimony. If it were to make it if this if this is you worked to reach the Supreme Court. What do we know about how we Supreme Court as it is currently made up feels about. Executive power and its ability to kind of resist investigations from the house. Now so there's one big. The hugely important precedent here is that you know Nixon tape case it's unanimous opinion 1974 finding that executive privilege doesn't permit the president to withhold these tapes. The problem there's it's not a dispute between congress and president that the dispute between his independent. Council and a grand jury right seeking evidence in connection with criminal prosecutions of some of the individuals who had been associated with the break in and conference Watergate. So it is not so that cases. Important because it explains executive privilege isn't absolute but it doesn't give us really any clues as to sort of how this kind of congress president showdown would be resolved even by that Supreme Court. Now they have like a footnote in which they say we're not talking about congress are talking about a different contractors criminal prosecution. So. So that of course be much more important question is this particular Supreme Court. I think we think they have a pretty muscular vision of executive power and presidential power in particular. But. You know I think that. To me a little bit it comes down to or 11 thing that might be important is this the Supreme Court I think in this Chief Justice. Have. Believe that that the integrity the courts and the Supreme Court as you know and that another important coequal branch of government is a principle that they have to protect so if defiance of courts were to enter the picture. During the course of this dispute between the president and the house. I can see that an institutional interest at the court being. Activated in the ways that you know tipped them at least slightly. To potentially at least consider siding with the house. You know it's the newest members of the court are. Have complicated views about this because they have their very skeptical about. Administrative agencies and the power administrative agencies are exercising much power at all. But it's not a general skepticism of the executive branch because they seem to be quite enthusiastic about presidential power so it does feel like thirty and we could be. Moving in this direction where its agency did the president has you know basically unlimited power to take different is all part of the present has actress has always protect you can have agencies do anything we just like in a sort of nonsensical position. I'm but the truth is you know there just aren't that many core presidential park he's is in the lower courts and so just as corsets justice Kavanagh. Are a little bit unknowns on this kind of presidential power prussian although I think that the people suspect that the of their sympathies would be with the president. And and that in on this issue like a lot of others that actually the Chief Justice who would by the way beepers and presiding over senate trial came to. Is the person who would very likely cast the dissenting vote in a case like this and why don't. We have a lot of kind of like understanding or precedent for how these kinds of things should play out have we just never. Tested our constitution in this way an average never tested the checks and balances that we haven't. You know it's actually because there is his long history of kind of negotiation and accommodation between the political branches when these kinds of disputes Erisa typically congress and that executive branch yup it's an agency reports the White House sort of levered is an executive branch. Kind of work it out among themselves so it's a very rare that anybody even goes to court and if anybody does often they settled before any final judicial resolution so. So that's part the courts really don't you know so there's not tons of know everyone is sort of uses Cortes a backs upsets this kind of handful of opinions and any opinions do you know. Fever a non absolutist vision of the president's executive privilege. But it's a good you know single digit number of important cases on a big big important topic. But Dirk hunt these disputes that arise over time to write the answer is almost always worked out informally in ways that don't create any kind of binding precedent. And and so far at least this trump Justice Department White House and kind of administration were probably. Doesn't seem. You know I'll beats the need to invoke any kind of judicial involvement in these proceedings at all. So but you know courts are courts don't like these cases they're gonna wanna see you guys were uniting your own but if the if the congress and show that the White House is categorically unwilling to do this kind of traditional negotiation process than I think a court might be more willing to. We don't resolve this kind dispute at all and resolve it fairly quickly and you know not in the White House as favor. And those can be a rabbit hole and potentially we should say this for whole other podcast altogether but. Is does the word constitutional crisis apply at any of the circumstances that we're talking about a guy because I understood to mean. When and a situation arises that the constitution does not cover prescription for and the bridges are unable to resolve it is a moral last what do constitutional crisis it is. I I don't feel like I have agreed definition at the ready when it's pretty good sound because it's like that word that phrase because there's a crisis gets like thrown around and I wondered visit anybody even know what it means or why we're using it mean beats when he's known. When you've seen anything like pornography or whatever checkmate. Like heart just aren't defined in the abstract. So I think. Yes I mean do things are you know serious. Conflicts between the branches right pike if there are mechanisms for resolving them. And those aren't. Content constitutional crisis I agree with I think Brit it is. I think meaty when one party to dispute. Decides to eight totally check out or be. To. Ignore the authority over legitimacy of some kind of critical other player. In ways that would aid. Prevent any kind of sort of binding resolution that feels like we're sort of meat may be some kind of like rough and probably too wordy and definition like ignore separate borrowing for example the ultimate example to meet the constitutional crisis that would be you know nobody would be able to really dispute that we are in a constitutional crisis. Would be the White House defying. And quarter of the Supreme Court actually even a lower court's iPod but it's of a lower court rules against. The president and the Supreme Court declines to take it up which is not likely but is not impossible and that lower court is has provided the final word. So in that scenario or you know obviously necessary and which that Supreme Court issues that ruling. And a refusal to do it I think would actually put us into genuine and undisputed constitutional Christmas and I think we have you know there's been a little flirtation with the you know sort of questioning authority over legitimacy of lower courts in rhetorically by this president but in action this administration. Has you know very quickly. Complied with even adverse rulings by the federal court to the detection important kind of principle in terms of the institutions holding so far two and a half years in this administration. And so you know I think that. I would have reason to hope that. That would continue. You know there were some questionable at the President Nixon would complain when Supreme Court ordered that he be released but the lawyers around him I think. Quickly made it clear that this was not you know and there was no real trees to be here and I would hope that in that scenario the same thing would happen at the wears around a president trump but. That is I think the perfect example something that would be. Clearly crisis. To wrap up a little bit back in the place where we started. You don't know president has ever been impeached and then convicted and removed from office right we've had presidents who have been impeached obviously. Do you think that impeachment has been. Used as it was intended by the framers. Did anything to impeachment should be a kind of like a regular thing or when they wrote it do you think they would have. Would have imagined that you know 230 years later it's not something that would have ever been resorted to. You know so three it. Over the course of our history we two and a half kind of there would have been a third. Seems to be in you know work are obviously embarking on the forthright now. To be. Within actually sort of of kind of a reasonable number range. I don't think that it was written in the constitution to be pinot sort of no with the American it was written because there was some anticipation that some. Holders of the office have become so intolerable. That. Election wasn't enough of a check and so so it is there for a reason. And and yet it was never meant to be invoked regularly or cavalierly and actually think that you know I think that the if history's judgment is largely that the impeachment of Bill Clinton was quite mistaken that in fact the misconduct charged. It did not rise to levels high crimes and misdemeanors that the Indians is obviously serious personal comments or moral failing but debt. The conduct itself the underlying conduct with respect his affair with Monica Lewinsky and then. The obstruction and perjury all in the service of concealing that sort of underlying act. Was not in fact the kind of thing that the framers intended but actually the other two so intra Johnson. Who is impeached ostensibly for firing his secretary of war but you know their eleven articles of impeachment niner about this firing secretary of war. The tour about kind of general misconduct one is about his intemperate her reins on becoming the chief magistrate of the United States accuse public rhetoric. Was pretty nuts and it's at the center of one of the articles of impeachment. So you know so with Johnson there's a bit of a mismatch between the weed that impeachment was sort of articles for draft and we use really impeach for always really impeach for was. Obstructing the process of reconstruction after the civil war right one in the southern states be readmitted. Without mandatory in French management. On the same terms of the of the members the union previously with any kind of military oversight by the north. If we try to thwart reconstruction answer to crew you know two to break inequality into the wall on the possible where United States. They regularly and make that clear that's when he impeaching him but you know this is that the Republican congress. That you know wanted to try mean they were flawed all kinds of ways that many of them at least the leaders wanted to try to build this kind of like genuinely multiracial democracy in that post civil war in it state. And he wanted to thwart them to return to kind of doubts there's a screen a book about the time to be Jacoby and teachers and Brenda wine apple that's sort of tells about. I'm gonna version of history but that's the kind of thing that you know if he took I was four and with Nixon to sort of corrupt abusive office. For political gain so he's either been served to properly done impeachment history media were important in a third now. You know with the sort of the denominator that we don't think that's actually you know about the right amount. But nobody is actually ever been removed from office so but so where's the hiccup in. Kind of how this was intended verses how this has actually played out is it simply partisanship because. But under the circumstance of candor Johnson and even under Nixon. You know the partisanship wasn't the degree to the degree that it was is today from. So why would why hasn't the full kind of process that laid out in the constitution ever played out. So yes so so it is is the question why hasn't it ever worked and it yeah I think it depends on what we think sort of working is not a little because Specter question about is it. It does is a coherent to say you be impeached but not remove so so I think the answers a little bit different with respect to each of the impeachment I think with. Johnson in it so this that concert or pars two thirds of the senators to vote to convict and remove. He fell one vote short there was their allegations that the timing afterwards at the deciding vote. Was from senator who had been bribed or promised things of that meeting in fact just as a tainted process to begin at. And so this is 1868 when he just narrowly escapes removal. End the election later that year he doesn't even get his party's nomination to run for president again and so although he's not removed in now way he's. Removed soon there after and so is that because he's so politically damaged by having gone through impeachment process impart probably yes. So advance. So in some with the kind of worked in this in director circuitous way and I think every one believes most people in maple leaf. Did Nixon would have been from different had he not resigned when he did so in some ways. The fact that the process wasn't allowed to run its course. Warts the sort of that that the overall picture of an impeachment gives listeners he you know it would have succeeded I think as the framers intended had he decided to just stay the course and fight it out but of course. You're the hyper polarization of the moment reliving and means at these historical examples. Only go so far only tell us so much I mean you know the idea is with the senators were deciding that they take a separate vote for at this both. You know. And I think the idea is that they are serving in a different capacity when they're sitting as juror basically deciding on an of guilt or innocence it particularly with respect to the president. On and that that should. Require them to transcend partisanship and you know. Is that something that's impossible in the stomach you're the host politics podcast after look at the question I just don't have the answer to Limbaugh only goes so far I would hope we can so transcend partisanship. But you tell me. I don't know probably. We're gonna like find out what time rightness is gonna Tass that all of the assumptions that we have about the strength of partisanship. Over the past. Decade. I mean especially if more evidence comes out it becomes like patently apparent that this is an impeachable offense I mean it'll be interesting to see we've talked on the podcast a lot about how. You know. There are not a lot of people were willing to defend these specific behavior. Their can there may be kind of you know it was bad but he should be removed from often as their son you know what about ism and things like that but. I don't re I only to only time will tell unfortunately it at a certain point whipple's like law and public if he can't. But anyway I think that's where we things have that you so much for joining me today I've learned a lot I really appreciate it thank you revenues really fun. That was Kate Sean she's a law professor at Cardozo school of law and co hosts the strict scrutiny podcast which is definitely worth checking out thank you so much again for being here tonight. My name is dale entry Tony channel is in the control room. Our intern is Jake Arlen you can get in touch my denying us podcasts at 530 dot com you can also of course greeted us with questions or comments. If you're a fan of the show beavis or rating or review in the apple podcast store or tell someone about us. Thanks for listening animal sees him.

This transcript has been automatically generated and may not be 100% accurate.

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