now, i am so pleased to

introduce tonight speakers michael j. gerhart is the burton craig distinguished of jurisprudence at the of north carolina at chapel hill, the scholar in residence at the national constitution center in philadelphia, and the foremost scholar on impeachment, the united states. he is one of only two legal scholars to testify in three different presidential impeachment hearings and served as special counsel to the presiding officer in donald trump's second impeachment trial. he the only scholar to address the entire house of representatives on the law, a presidential impeachment. he's joined in conversation tonight by michael j. clairmont. michael j. clairmont is the charles warren professor of legal history at harvard law school. his most recent book, the framers the making of the united states constitution, was a finalist for the george washington prize. michael gerhardt is presenting his new book, the law of presidential impeachment. as a result, donald trump's

presidency impeachment was once again thrust into the spotlight. american political discussion. however, its history goes back to the founding of the nation, when american colonists remembering their grievances, their former king entrenched process in their new constitution, the law of presidential impeachment breaks down both the law. politics of this process providing a comprehensive nonpartizan up to date explanation of the constitution and various mechanisms for holding presidents accountable for their misdeeds based on a lifetime of scholarly research, as well as unique experience as witness and consultant in the impeachment trials of. bill clinton and donald trump. michael j. new book takes the reader back to the basics of presidential impeachments. as laurie -- horn says gearhart, a nationally recognized expert on this subject on this topic, is exact scholar needed to write concise and accessible guide to all things impeachment. this will certainly be the new, definitive on the subject we're.

so pleased to host this event here at harvard bookstore tonight. please join me in welcoming michael j. michael j. clairmont and c-span c-span. swift outside, as you heard. so, yeah, as you heard, michael is the on impeachment. he's the expert. so we're fortunate to have him i'm going to ask some historic questions and then i'll move toward what's going on today. the framers decided that the president, other officers should be removable if the president runs for election every four years. why wasn't that good enough? if the president misbehaves just. wait till the next election. that was kind of the republicans argument in response to the trump impeachment. anyone? 19. why? why did they decide?

that wasn't a good enough option. waiting for the blue light. first, i just want to thank mike for doing this. i really appreciate your your generosity in doing this. and i'm and for a great first question, the framers of the constitution as everybody here knows, we're part of a generation that rebelled against england and in one of their first acts in rebellion, they issued the declaration of independence which consists of 27 articles of impeachment against the king and. the king was the only person in all of england who was not subject legal liability or accountability or to impeachment. clearly, the framers didn't like that. clearly, the framers wanted a different kind of government. and while they were experiencing tyranny under king. i think they just affirmed their commitment to ensuring when the day came for them to draft a constitution, they wanted to make sure that nobody was above

the law and one method ism that helps to try and ensure that principle is to subject a president to impeachment for treason and other high crimes and misdemeanors. elections are not the safest or most effective way to prevent presidents from abusing power. the framers themselves worried about demagogues. the framers themselves understood the demagogues should be elected and once people are elected. they might even in the name of the people break the law and abuse their powers and and the framers, i think, didn't want to have a system in a leader could get away with kind of misbehavior. so impeachment was put in the constitution a way to try and be a check on presidents abuse of power. now it may not have worked out perfectly as we'll see, but i think that was the original.

the standard in the constitution. impeachment is treason and high crimes and misdemeanors. by that standard. and did they agree among themselves? what high crimes and misdemeanors were? does it require something that you could be indicted for, not necessarily. well, that's, of course, the question comes up all the time. and i think one of the things that frankly frustrates me as somebody who works in this field and maybe even frustrates a lot of people who are constitutional scholars, is the fact that the american people and congress keep getting keep needing to be reminded of the scope of impeachable offenses under the constitution so that language, treason bribery and other high crimes and misdemeanors comes from the british. the british had used a system of impeachment that back to the 1200s, and over time they had developed a language for referring to the misconduct that could be subject to impeachment

and. and the framers essentially borrowed from that language, i think they were ultimately not initially, but ultimately in agreement on what might be covered. treason, of course, is defined in the constitution, bribery was understood at the time of the founding as misusing one's office or personal profit and other crimes. misdemeanors refer to what the british legal historians and scholars described as political crimes and political crimes were abuses of power or breaches of the public trust that hurt the republic badly. they didn't get much more specific that except if you look at the constitution mentioned notes and there are somewhat unreliable. but if you look at those notes you'll find that there are lots of examples that were given by the delegates that underscore really underscore their belief that the impeachment power was

needed to make sure that presidents could not abuse their power because the law didn't necessarily provide a remedy for presidential abuses of power and. you needed to have a sanction. you needed to have a mechanism could check that might be liable at law, let's say, for some civil infraction or some kind of misconduct. but if you abuse the pardon, for example, there's not a law that says otherwise. oh, that's criminal infraction. or you can't go to jail for that. and so it's also a long way of saying that i don't think the scope of impeachable offenses is originally designed only to get an indictable crimes. they were just it was designed to get at certain kinds of misconduct. not every kind of misconduct, but certain kinds of misconduct. and then if the system works, presidents might later subject to a or criminal proceeding. but at the same as we've

discovered, civil and criminal operate according to their own time schedule. they don't wait for impeachment. impeachment oftentimes is the last on the field these days because it's a it's a time suck. you know, once you have an impeachment going in congress, according the rules of congress, every other piece of business is moved away. and, for example, with donald trump's second impeachment trial, once the house did impeach trump, mitch mcconnell released calendar of what the month was going to look like. and every was out because impeachment had to be the only thing, the first and only thing that the senate could address. and senators don't like to necessarily have to spend all their time on something they know is going to be difficult and maybe ultimately a loser for them. the impeachment looks a lot like a trial. would they give the authority, the senate and to remove the

president or anybody else who is being impeached well? so now we go back far and away to a time when people had an ideal of the senate. i mean, initially, the thinking among the framers, the extent we can kind of characterize it, it was that the senate would check the house and senators were elected by state legislatures, not directly by the and there was a hope or expectation that the senators would rise to the occasion of an impeachment trial, not just to engage in partizan politics. they hadn't fully foreseen that phenomenon, but they the hope was that could rise to the occasion and not make a partizan about whether the subject of impeachment had abused power or needed to be removed from office. so the senate became the place where i think the framers a more sober judgment to be made about

the subject of the impeachment they had respect for the house. they thought the house and because they had, they distrusted the people. they thought the people as long as they were uneducated and most of them were were not reliable and the house was prone to intemperate action. so you needed senate in a sense to check that, and then you make it even harder for there to be a conviction because you have this thirds threshold for conviction and removal. and as we all know, no president has ever been convicted and removed because they've come nowhere close to getting two thirds of the senate in agreement on that. i think probably most people don't that a supreme court justice impeached, but then acquitted. can you tell us a little bit samuel che's services early in the 19th century, yeah. so once enterprise gets off the ground, then we had political reality that and i think all

those hopes and ambitions for whatever government was going to do immediately sort of runs right up against the development of rise, of influence and of political parties and not after the constitution is ratified and put into effect, and particularly after the election 1800, when thomas jefferson elected jefferson and the democratic republicans in congress start using impeachment to threaten federalists, they didn't like they threatened john marshall. they they they're looking for judges initially i think who were who they thought could be vulnerable to the impeachment process and they hit upon two one was samuel chase and was very much an outsider. chase was a supreme court justice by george washington, but he was also a really fervent partizan. and he gave lots of of

inflammatory speeches, particularly in enforcing the alien and sedition act against jeffersonian jefferson's partizans. so the reward for that was jefferson and the party go after chase in an impeachment. he is ultimately acquitted that two thirds threshold again poses a real problem. a majority actually votes to convict him, but don't need a majority. you need more than that, you know, supermajority to convict removal. so chase becomes an example to some to other people at the time. this is what's going to happen to you if? you are overly partizan or not one of us, but the fact that he's acquitted is construed by many, including chief justice william rehnquist. in his book on the subject as one of the first times in american when congress trying to vindicate the principle of judicial independence.

so i guess if you want to be an optimist. you can draw that lesson out of chase's acquittal. i'm not quite as much an optimist. i think that two thirds threshold is virtually impossible to overcome. the higher up you go in terms of the the power structure of government. so jefferson was really disappointed by the failure of that chase and his conclusion was that impeachment was a mere scarecrow of a thing. it yeah i think that's i mean they did get one person john so john pickering was a federal judge i believe from new hampshire. i may get the state wrong. i'm sorry. i do that pickering's problem that he was developing mental instability and so he would

engage in fits and tantrums the charges that he was on the bench and and so he became an easy target and pickering was in fact impeached by the house and convicted and removed from the senate, despite the fact that his son was pleading the senate. look, my dad's sick. i'm paraphrasing, you know, my dad's mentally, you know, let's try and get him off the bench in a more. suitable way than the what using this process nevertheless process was used ever since the pickering conviction, there's been a lot of discussion about whether judicial should serve as an appropriate or legitimate basis for impeachment and generally speaking it has not been. so you really have another good way to remove him, right? because the federal have lifetime tenure so that there's no provision for disability, there's no age. so it's either impeachment or

they stay there or die. yeah. i mean, the fact is and maybe we're, you know, we're seeing early signs of this in the republic in those years. you know, once somebody gets in a position of power, it's kind of funny. they don't really want to give it up and i don't how mentally sick pickering was. so we can't really assess the extent to which he he really it was aware of what was going on and had some kind of intelligent sort of response to it. we just don't know for sure. but what we do know is impeachment worked and that i think sort of sends a big signal across the federalists. others look, this process may be a scarecrow when it comes to a supreme court justice, but we still might be able to, you know, draw blood. and so there are several other attempts through the 19th century. so talk about presidents first president to be impeached was

andrew johnson. tell us a little bit about what he was alleged to have done and why wasn't removed from office and, whether they had respectable grounds for removing him or was this just partizanship i think was all that i mean, i think that there was a lot going one of the first and most important things to understand is that andrew johnson was enormously everybody. andrew johnson this is partly because, of course lincoln had been assassinated and it's very fair to say andrew johnson was no abraham lincoln. lincoln himself stopped talking. johnson because johnson showed up drunk on inauguration day and lincoln said, keep that man away from me. and they never basically each other again. but because of the assassination, andrew johnson becomes president. he was the one democrat left in the senate at the time because all the other democrats left of the confederacy.

and what that means is congress was stacked against him. and it's not like democrats wanted to save him either. so almost from the minute he gets into office, there, this effort to try either tame him or get rid of him and ultimately he violates a provision of a law or i should say arguably violates the provision of a law that been passed over his veto and that was enough. that was like exhibit a and what johnson had done is he fired his secretary of state as secretary war edwin stanton house unanimously impeaches. johnson it goes to the senate and amazingly he falls one short one vote short of conviction and removal. so there are a lot of lessons we can draw from. one is we have one of the most unpopular presidents history and we couldn't even get him convicted and removed and the

way the impeachment articles were crafted, i think, was not a great model for the future. they're mostly describing the he used against members of congress, the only one that really seriously into any kind of substance is the one on the tenure in office. act, which is the law that he had vetoed but got enacted his veto. and in that he basically seems to have violated. i don't even know how serious that could maybe think that is. but the fact is that johnson johnson's acquittal is another sign not too long after chase's acquittal, that maybe this process isn't to work that well. again, the higher up we go in our system, government. so a lot of people, including johnson's lawyers, would have said that the statute he was of violating was unconstitutional. can you say something about that?

yeah. yeah. he had great team of lawyers, by the way, you benjamin curtis, for example had been a supreme court justice who left the supreme court in protest over dred scott. that's a whole other thing to talk about is like this that was the most effective way to protest the decision. but but can talk about that but curtis is a great lawyer and i believe a graduate of law school. and so but what happens is that his johnson's lawyers i think because they're good lawyers, begin to craft strategies that we're going to see used later as well. one of the first strategies is to say, oh, impeachment only reaches misconduct, indicted for misconduct and violating tenure in office act, which is largest civil statute. that's not really going to qualify as a second defense which is a little more technical but it wasn't bad was that the tenure in office act really

might not have applied edwin stand because edwin stanton was in the cabinet because of abraham lincoln, not because johnson put them put him there. and so one interpretation, the statute is it doesn't constrain a different president from removing somebody who had been appointed by else. then they finally get the other argument, which is that johnson, having not committed a crime and johnson having perhaps acted in accordance with the statute, is therefore really somebody who had a policy difference with the republicans in congress. republicans congress wanted to put together a very robust reconstruction. johnson stood in the way of that that's politically going on and and so johnson is not ultimately removed for his obstruction of

reconstruction. the last ten months of his administration. he's very tame he's like almost non present, very timid. and if you knew andrew johnson, but not really timidity is not really, you know, how you describe him but he got the message and he sort of just keeps his head down, rides out. the presidency. and now we left to make sense of that. yeah. so for the next hundred years, no serious effort to impeach a president and then nixon. so tell us about what was about to be charged with why nixon didn't put up a fight left office without being impeached, what lessons we draw from that. yeah. so with richard nixon, we finally arrive at a time when it might be suitable to say that this be how the constitution should work.

if we're going to try and find an example and say, has it ever really worked? perhaps as designed, nixon comes, i think about as close as we can get to that point. what happens with nixon after he's had a landslide reelection he he still faces investigation in three places the house, the senate and a special prosecutor. and that's because there were people that broke into the democratic headquarters at the watergate hotel and they had a piece of paper on them. and the piece of paper had the number of the white house, and there were these intrepid reporters. woodward and bernstein, who start trying connect the dots, or, as they put it, follow money and what they ultimately discover or find is that this crime may actually be linked to nixon. and once they are underway, even though nixon won this big

reelection, notice how these investigations are not going to stop because he won reelection. they're not going to stop because he will. i use the word popular. richard nixon was never popular, but he did have a big electoral. and so once these investigations get underway, lots of misconduct comes to light and and at the same time, one of the people testifying, alexander, who worked in the white house testifying the senate says, oh, by the way, installed this tape system in the white house. now, it's an internal. why would richard nixon have ever taped himself. talking about a crime? i mean that's been itself a great for psychology and other things but it's like you know it's hard to get our heads around that so once butterfield revealed that needless to say the special prosecutor in all said we want those tapes. nixon no way. the criminal defendants also the

people rest in the watergate break in also wanted the tapes because they figured their defense was the president us to do it. so this goes in the united states supreme court. supreme court unanimously, the court rules nixon's got to turn over the tapes. and here, i think, is a critical moment, at least as far as impeachment's concerned nixon thinks about defying that, but his counsel says if you do that you are absolutely certain to get impeached and kicked out of office. otherwise it's kind of iffy. but and nixon. okay, he turns over the tapes by the way he doesn't turn over all the tapes he's asked for ten. i think he gives six. and but there's information that's gleaned from the tapes to figure out that nixon basically had ordered the break in and then the house judiciary committee shortly after supreme court decision approves three articles of impeachment against nixon, one that charged nixon with the heads of the irs, cia and fbi to go after his political enemies. so this is serious stuff and

serious misconduct. once the house judiciary does that, nixon meets with republican leaders from the house, particularly in the senate, and they all say to him, we don't have the votes to stop this. and nixon resigns. that resignation was a somewhat unexpired it. and i will have to say unique. i don't know that we'll ever see a president again willing to walk away from office. nixon did, but did resign. and in doing that, i think he indirectly allowed impeachment to be given some degree of authority and respect, even though it had been rarely used. i going to ask you this later, but i want to make sure we get to it. so my from what i've read, the key event in, nixon's resignation was the republican going to him and saying, you're going to lose you if you push this to a fight.

and with the trump impeachment. one senator voted to convict the first impeachment and seven republicans senators in the what's what's the difference? why did so many repub victims turn against nixon? but almost no republican were willing to turn against trump. well i cannot give it a definitive answer to that, because there's a lot going on here that explain that. but within the context of impeachment, i think one thing that happens between 1974 and by the time we get to donald trump in 2019 and then later in 2021, is the political world changed and party political exerts even more influence than it did even back in the early 1970s. and i think what members of congress and particularly the subject of impeachment trump figured out, is, you know, if our fellow partizans stay united

in opposition to impeachment in the senate, they can prevent the senate reaching that or passing that two thirds threshold for conviction, as long as they've got more than a third of the seats. and, of course, republicans had more than a third of the seats both times. so numerically, a conviction is impossible if. the president's party stays unified against removal. they learn that lesson in part from bill clinton, because when bill clinton faced democrats in the senate, there were 45. that's i'm not good at math, but 45 prevents the senate from reaching the threshold of 67 and therefore clinton was not convicted. and i think we also learned from clinton, hey, you know, bill clinton, bill clinton's going to resign. it's not his dna. and so a couple lessons trump

figures oh, clinton didn't resign. i'm paraphrasing. trump i'm not worse like richard nixon. and we've got this threshold bill. he might have put it more. in, dare i say it delicately, but but the fact is, once trump is facing impeachment not just the first, but also second time. republicans are staying united for a variety of reasons. one of which i think is they don't want give the democrats a victory. they don't want alienate donald trump. apparently, his name calling has been, you know, is so stinging that they just can't, you know, face the prospect. they actually can be called names. and and of course, what's really important is primaries. you need the trump voters to win primaries. so republican senators i

concluded we're going be in electoral trouble if. we go after this guy. and the only senators that voted against trump were the ones who are leaving the senate. right. so let's talk a little about clinton and, trump and the severity of the charges. so i think most people would deny that, richard nixon had done things that would qualify as high crimes and misdemeanors. as you said, he's trying to get the cia to stop the fbi from investigating the break in and the cover up of the watergate burglary. bill clinton is charged with perjury, lying about an affair that he had with a white house intern and obstruction, i believe, trying to get his assistant and monica lewinsky to lie to the to the prosecutor. so was that serious enough charge? should clinton have been impeached and removed?

it's my view that was maybe the toughest of these cases insofar as impeachment is concerned for me anyway. i think the two most important things to keep in mind, if we're trying to figure out whether impeachment suitable for any given situation, is the context in which the misconduct arises and gravity of the misconduct. so the context for clinton is you say it was a sexual relationship. yes, i dare go. there it was a sexual relationship he had with monica lewinsky, but he lied about it under oath and we could look at that context and think, okay, technically that's certainly going to that's perjury. but it's perjury about something that doesn't seem to be as serious as national security. remember impeachment is only aimed at serious misconduct and misconduct. the seriously hurts the republic. so there's this question about whether or not clinton's misconduct fits, either of those

descriptions, and then the other thing is obstruction, which is more serious. but the obstruction had to do with trying to hide evidence from what was a partizan witch hunt that was overseen by ken starr and starr's office. they were out to clinton. and by the way people were out to get clinton from day one. so in that sense, clinton, the same mistake andrew johnson makes. they both know people are after and then they both make these women make all the mistakes or decisions which they know going to give the other side ammunition. and the other side, of course, uses that ammunition to go after them during the clinton impeachment at all times, approval ratings with the public were 60 to 70%. and some people thought, well, maybe that's relevant if the american think he's doing a good job, maybe he did shouldn't

qualify as high crimes and misdemeanors but republicans argued in response that constitutional law is not necessarily about majority he's getting their way that constitutional is often about protecting minorities or about standing up for principles regardless of what majority want. should it have been relevant during the impeachment proceedings? the american public seemed pretty well satisfied with clinton as president i think it was inevitable. i think there's a there's very significant moment early in the 20th century where the constitution amended, and sometimes we don't emphasize this enough. i think when we think about constitutional law, the constitution was amended to change the way senators were elected. they had been elected by state legislatures. again, the idea behind that was indirect election insofar as the american people were concerned. and so and the fact that they

were elected by state legislatures mean they're a little more principal, they're a little more dignified, more capacity, let's say, to be people. but once the constitution changes and senators are directly elected by, the people they're going to end up acting pretty much like the members of the house. and that is they're going to be hypersensitive to public, hypersensitive to polls. i i to said at the time of clinton's impeachment. you know, the longer this goes, the more popular he gets. you know, it's going to he's going to make 100 at some point, you know, and i think that might help explain why when the matter got to the senate. tom daschle, the democratic minority leader, and trent lott, the majority leader, both thought got to get this done as soon as possible. this is a mess in other ways. you know, we can't have this go on very long because. it's going to torpedo our popularity and just any respect people have for the senate, which by the way, they probably didn't have much.

and so i think, you know, fast forwarding to today today it's hard for members of congress, whether they're in the house or the senate, ignore public opinion. i think that would have horrified the framers, but that's system we've got now and it may actually make impeachment more difficult rather than easier. so let's talk about the two trump impeachments the first impeachment was about the quote unquote perfect phone call to the landscape of ukraine. the allegation is we actually have a transcript. so we don't even have to call an allegation that trump said, i'm not going to give you appropriated funds unless you do me favor. and the favor was to investigate his principal or what he deemed correctly was his principal opponent for the presidency. in 2020, not a single republican in house voted to impeach and mitt romney was the only in the

senate. and most republicans argued this was absurd for impeaching him over phone call. there's an election in less than a year. let the people express their what do you think was something that the framers have regarded as a high crime and misdemeanor? and if so, why did one republican in the house and the senate vote to convict. well, i'm on record this one because i testified in front of the judiciary committee. one of my fellow witnesses was feldman, you know, from law school here. and and i testified at that time, and i still, i think think the same way as reflected in this book. that the 2019 impeachment of trump was fully justified. again, remember that the focus of impeachment is largely it's not wholly, but it's largely on how a president who has unique

powers may abuse them. so it's not the powers you and i have. you know, we don't have the power to pardon. we don't have the power of veto. we don't have the power not to appropriate money, which has been passed by congress. but the president does. and once the president does those things, in trump's case, his unique position in affairs to try and get leader of another country, this is what he's trying to do to try and get the leader of another country to announce a false narrative. what trump wanted was just the announcement that there was going to be an investigation, a criminal investigation into joe biden. that's all trump wanted. and if we think about that, at least if i reached the conclusion that's just not good. we don't want our president's abuse in their powers in that way. and so that gets to one of the most serious kinds of misconduct

president can can can commit. and again, if you look at what the framers about at the constitutional convention, when they start talking about they talk about examples sound actually somewhat similar to what trump did in 2019. so i think there was a serious basis for the impeachment. but i think the influence in a political party became so strong, it was like a strangle. so republicans right, there was an election coming up. but what they were also acknowledging is that there was an election up and they needed to win it. and so it more important for them to win that election, i think to get anything right insofar as trump was concerned, even though convicted of removing trump would have mike pence, not joe biden into the presidency. so you weren't undoing an election at all. but but as far as impeachment goes, i think it was a pretty

clear up event in which party overrode the constitution and that and that became even clearer in the senate. you mentioned that you testified in the impeachment hearings. any interesting inside stories or any any anything you took the experience that sort of surprised to something that you didn't know going in? i say it doesn't mean very much when i say i wasn't surprised much, but i will point out one thing that i think is interesting, maybe significant. so when i testified in the clinton hearings back in 1998, i got maybe one hate letter, but it was but it was framed in terms of substance and that's okay. i mean, it's okay. you know, if you put yourself out there as a scholar, it's

okay for people to come at your work and and question that and challenge that and in the hearing, i had a lot of republicans ask me substantive questions and challenge me on that ground. again, i think perfectly legitimate. that's appropriate. now, we fast forward to the trump in 2019. not a single substantive question from republicans in the house. lots of personal questions and lots of personal text questions like who did you vote for? questions like, is it true that your family gave money to barack obama. yes. and so, you know, i remember, you know, no. if at that point sort of saying, look, you can't do that, that's you can't ask people, you know, to publicly talk about who they voted for. that's how that but that's how far we had come or, how far we had devolved from from any kind of pretense about substance to. just stark and direct sort of

personal attacks and partizanship. and it didn't change much when you got to the senate. so second, impeachment is after trump charged with inciting a violent against the peaceful of power. ten republicans voted in favor, but it only takes a majority in the house. and democrats have controlled the house. mitch mcconnell decides that he's not going to hold the hearing until after trump is out of office seven. republicans vote in favor of conviction. but that doesn't get you to two thirds. what lesson should take from that is there is there any question that this is impeachable behavior? and if republicans wouldn't in significant numbers, what does tell us about the point or the point of the impeachment mechanism? and do you think that mitch

mcconnell maybe is kind of sorry that he didn't allow the impeachment to to result in a conviction which could have then disqualified trump from running reelection? it tells us a lot and what it tells us is not reassuring. it's it's it's very sobering. what i we experienced the second impeachment trial mike is right to sort of focus for example initially on the fact mitch mcconnell could have started a trial while trump was still but made a decision not to call the back into session and didn't that until the inauguration day of joe biden meaning that the new majority chuck schumer would begin that trial basically on the day of joe biden's inauguration. that's a political move. and mitch mcconnell, we all know, is very good at political moves.

but once that political move was made, then republicans came back and well, wait a minute, now you're going after trump and he's no longer in office, but keep in mind, he was no longer in office through much of the trial because of the delay at the very beginning of the process in january. nevertheless, i think in that trial, there's no question there should be no question that a president who participates in or encourages a violent attack on congress has committed impeachable offense. it's hard to imagine, you know, now we're in this business of figuring, thinking, can we imagine anything worse worse in any event that at least in the abstract, is an impeachable offense? but i think by the time trump is

exiting the white house and no longer republicans again kind of coalesce and come together largely. i think in a partizan move to keep trump from being convicted one of the arguments they make and made at the time was it's improper and illegitimate to go after somebody who's left office. so that was their their legal argument, it was not a bad legal argument. it's a fairly serious question about whether impeachment extends to or may extend to somebody who's no longer in. and there was some serious about that and several actually voted with the democrats to assemble a majority in of the senate having jurisdiction over trump's trial, even though he's no longer in office. so that that did happen. but i think what we've what we have to face is the fact that impeachment, i think, is not

working as we'd like it to work. and there are lots of questions about how we might improve it, but there's no question at all that. this system, which originally designed to prevent us having a tyrant and to prevent us from having an unaccountable executive as president is not like it should. well, on that point, we also know that the republicans have now commenced a formal impeachment investigation of president biden without claiming that, they have any evidence of any wrongdoing. indeed, acknowledging that they have no direct evidence of any wrongdoing and also commencing impeaching by proceedings against a cabinet secretary, the homeland security secretary, again, without any allegation of any criminal. so does that tell us that the impeachment mechanism is completely broken and pointless at this point? i don't know that it's

completely broken, but it might be. the. is again, mike is absolutely right. we've got these dual impeachment proceedings going on right now, one against joe biden and, one against alejandro, new york as the secretary of homeland security, the own witness said in the only hearing held held biden's impeachment, that there's no here showing biden committed impeachable offense, which then some republican house members to say. why is this guy testify. that same expert later said there's no evidence that new york has committed any impeachable offense. pretty much cementing the fact he will not be called as a republican witness. you. so that's a good thing. but. i think there's several, at least in my view there's several

things that might help explain that. and it's all politics. one is the desire to do what trump has asked. trump says, hey house leaders impeach biden. it was done to me. well, that -- for tat is not exactly the system was designed for. but house leaders led by speaker mike johnson, who was one of the architects of an attempt to overturn the election, have taken the position that we'll just do what trump wants, we'll try and impeach biden. they've spent months and months and months investigating hunter biden now. i hope everybody knows biden is not president united states. i think it's fair to say he will never be president united states. he's a private citizen. so months and months of investigations, hunter biden's legal problems has not produced any evidence of joe biden's complicity in anything wrong. that's what's been uncovered in

light of that fact, impeachment proceedings sort of intensified against new yorkers and are all about biden's immigration policy. so what we see is these impeachment proceedings designed in part to give free airtime to go and bash biden through the presidential election. i think that's clearly what's what the design is what the purpose is. but i think what it might also reveal is some republic are not terribly happy that some moderate republicans are saying right now the house doesn't have the votes to impeach biden. in part because there's just no evidence that biden's committed any misconduct, much less anything wrong. and as far as the caucus is concerned, it's been understood for years and centuries that

impeachment, then illegitimate a basis for impeachment is a policy difference with congress that really is what elections for. and so new york is. it's just doing his job. he's implementing biden's immigration priorities and and the way in which to respond to that under our system is that's what elections are for an impeachment is not designed to get at policy. just imagine for example if impeachment were used for that effect, our entire system of government would change and we'd have impeachments all the time. any time someone that leaders in congress felt they didn't like the policy. the president oh, let's just impeach it. and our entire system would probably transform roughly into the british system, which the way was exactly what we were trying to get away from in the first place. i have more questions, but we're running short on time and we wanted to give the audience an opportunity does anybody want to raise a question?

i can you the microphone. yeah, there's the boom. yes. so and there's so much for really engaging talk about things you can speak a little bit to the argument that trump's attorneys have made at the d.c. circuit court of appeals seems like that no one is giving much credence to the idea that impeachment a president has blanket immunity. but is this going to become, again, is impeachment and especially and the republican impeachment, it becomes a political tool and the idea of presidential immunity or tyranny becomes part of the republican platform. i'm curious your thoughts on where this may go. well, trump's lawyers arguments absurd. i mean they're they're silly. they lack any foundation in constitution law and they're thoroughly political over that. they're just bad. so let's but let's engage with

what the argument is. the argument is that a president of the united and in trump's case the former president united states is asking for an that no president has ever had or ever will have. and the immunity that trump wants to try and get is immunity from a criminal prosecution for misconduct for, which he was not impeached, convicted and removed for the that is wrong in so many ways. we don't have time to go through them all but but it's a great political talking point that i think it's one i think what we're seeing with trump's lawyers, they're not good lawyers. they're just making political points. and and for those of us to care about the practice of law, it's painful to watch lawyers just descend to treating and treating legal arguments as they're just

they're like campaign stops. but but at the at at the base the problem with the argument. the first it would. first misunderstood stands impeachment and the fact that under the constitution civil criminal proceedings are separate from each other and they're from impeachment. impeachment is not the same thing as a civil proceeding or a criminal proceeding. for example, the punishments impeachment are removal and disqualification. they're not criminal sanctions. you don't go to jail like you could in england. you can't be put to death like you could in england so because it's a different process. you can you can go through the impeachment process. and the outcome is whatever the is. but still there could be a separate criminal prosecution or you go through the criminal prosecution and there's a separate impeachment process. they just work.

the sanctions are different. a second thing is in the 1980s, there three judges who were two of which were criminally and jailed in prison before their impeachment and. they argued in court that they should not face criminal should not face impeachment because they just had been criminally prosecuted and courts throughout that they threw out their argument. so we already had judicial precedent cutting the other way. and then last but not least the ramification of the argument that trump's lawyers making trump has to be above the law. if you look at all of trump's arguments, they're boiled down to that every time puts together arguments or his lawyers are something. the bottom line is he's got to be above the law and this and

that fact is completely undercuts and undermines the constitution and the rule of law, which the constitution is supposed to establish as a independent thing from political preference or political objectives. what about the i that the lawyers should make the argument the supreme court has already recognized that the president has absolute civil immunity if he's acting within the parameters of his office if the president has somebody fired in the civil in the executive branch and that person says, you fired, me because of my speech, the supreme court has said, sorry, absolute immunity. now, the president's argument is, well, if you give me absolute civil immunity, obviously, i should have absolute immunity with regard to criminal prosecution, because that's even more of an influence on my behavior here.

right. i mean, the idea of immunity is you don't want the president looking over his shoulder worried about being held responsible for doing his job and if civil immunity is granted. well, i risk to jail is even greater. so obviously he should be immune there. you don't think much of that or. no, i don't think much of that argument. and the supreme court didn't think much of it either in the case called trump versus vance. so in trump versus vance, the court ruled, while was in office. but a sitting president may be subject to criminal investigation, and in that case it was by a state prosecco order. and incidentally if you read the opinion, nowhere in it does the court say, oh, there's a prerequisite for that. in other words, before that could be a indictment or investigation. he's got to go through the impeachment process. the court never says that. and trump versus vance. instead, the court says pretty directly, no, the president, a sitting president, may be subject a criminal investigation, while is president and part of the reason for that is because the criminal

is not directed at official conduct. it's directed unofficial conduct, breaking the law, for example, breaking criminal law is not official conduct. now, one of the things that's also going along in this case is trump's lawyers are trying to expand the idea of what counts as official conduct. now, guess you can guess what their argument is. everything counts as official conduct. what he said on january six, all official everything he's ever done. apparently is official even before he became president. this is, you know, the gist of what he's putting forward. but the is i think when you look at all the supreme court decisions on immunity they leave open possibility think of clinton versus jones a civil case based on pre-presidential misconduct that's permissive so civil cases can proceed against sitting president based on pre-presidential trump versus vance. cases may proceed criminally against sitting president.

so the supreme own precedent cuts against, i think, the arguments trump's lawyers are making. another question from the and i have a question. well, assuming for a moment, mr. trump was reelected, could he be impeached for the actions on january six? because now he's president again. yes. that be maybe the least of our problems. but yes, mean, i think that and then there are questions about trump will pardon himself trump also is the president will likely ask the department to drop all prosecutions that have been made against him. so it be just one thing. there'll be a series of things and assuming democrats don't disappear and they're in control of the house, they well think

about impeaching him again and. there's no double jeopardy problem with impeachment because impeachment is not a criminal process. so i think they could come they could reframe the article that they they could reframe what they did the first time. and it again, it may not succeed, but i will also i'll end with this you can tell the way we said impeachment is broken it's imperfect. but i can tell you this presidents don't like to be impeached. you can tell stings. donald trump, he doesn't like it even though he was acquitted. he doesn't like it. bill clinton does not doing somersaults because he got impeached. bill clinton knows that in his own obituary, first paragraph, second president, nine states to be impeached. that hurts if president now they can still at night, but it does tell us something about the fact that impeachment has a little bit of sting to it.

it gets their attention. it won't stop trump, but in a manner work again against trump. but what that also us is we have to use other mechanisms which we hope are more effective. we have time for. one more question. all right. thank you. as you mentioned, it's been a long time since we've had an of a supreme court justice. but i wonder with the revelations about clarence thomas receiving amounts of money from people who have business before the court, if we could be wandering impeachable territory. it's a great question. i think we've already wandered into that territory. i think the revelations, which, by the way, keep coming about the the money that thomas received from friends that was never reported. let me let's let's kind of think

about it this way. do you think that justice thomas would ever be sympathetic to somebody who somehow acted, contrary to the law and made mistakes? the answer no. i mean, look what he does in criminal criminal sentencing cases. but the fact is, there's a lot of a ton of money that has not just to him, but to a number of other justices. they haven't reported, which is also telling us that our we have more than just impeachment that's broken. we have a lot of i mean, one of the things that at is most important for me is our highest government officials got to be accountable and they've got to be accountable in a meaningful. but what we're discovering is just don't seem to be able to get away with it. they just produce a code of ethics that doesn't amount very much, but impeachment was originally designed, i think, to get at corrupt practices, and i

think the burden is on thomas to show there's corrupt practice. so do one more question. how would you improve the impeachment process, what do we fix it? fix it well, we could try and improve it. the problem is, of course, it's going to time. so the first and most immediate thing is obvious. and that is to vote now, impeachment, by the way, is designed to protect elections from being undermined. that's actually one of the examples that comes up the constitution convention. and if you if a present for tries to undermine the integrity of the electoral process that's a classic case for impeachment or should be. but impeachment, if impeachment is not available, we have to hope that the fourth estate or something will somehow bring to light misconduct that will lead

the american people, let's say, not to reward bad conduct, but i think we're at a point in time where have to rethink a lot of the mechanisms we have for holding people accountable in government because not working very well my wife tells me never to have pessimistic note i've violated that principle but but if you vote. it won't be so. it won't be so bad. so yeah. turn that around. that's being. thank you might