host: welcome back. we are joined by philip bobbitt, a constitutional scholar at columbia university law school and distinguished senior lecturer at the university of

texas at austin law school. welcome to the program. guest: nice to be here. host: let's start with secretary mae arcus. house republicans failed to impeach the cabinet secretary. they said that they will try again as early as next week. what is the constitutional standard for impeaching a cabinet secretary and how or is it different from impeaching a president? guest: i think it is different. the legal standard is treason, bribery, or high crimes or misdemeanors. but all civil officers includes not only the president and vice president, cabinet, but also judges. most of our impeachments have been of judges. there is a different standard for the judiciary than the president because it has to do with a particular role in government. you could say that the standards for cabinet officers are more to

do with treason, bribery, he or she has less opportunity to commit truly high crimes and misdemeanors because the cabinet office doesn't have the scope that the president has. host: the two articles of impeachment against secretary mayorkas is willful and systemic refusal to comply with the law and breach of the public trust. do you see that that reaches the level of impeachable offense? guest: no. there are many people who teach and write about constitutional law who do. impeachment has changed since the framers ratified and designed it. it has changed mostly in the last few decades. mayorkas is the far extreme of

that change. it's disheartening in a way because we have moved further and further from a legal standard and more into performance art. host: let's talk about history for a moment. the last impeachment of a cabinet secretary was during the grant administration. his war secretary in 1876. when you compare these two episodes, what can we take from that chapter of u.s. history that can inform this one? guest: he had taken substantial bribes over several years. he admitted this and resigned. the question of bailout is if

you could impeach a cabinet officer who had resigned and was no longer a civil officer. he was acquitted mainly on that basis, but there was no doubt that he had accepted bribes. he confessed that to the president. host: staying with history, george mason, one of the founding fathers, considered adding the words of maladministration to the list of offenses. chip roy supports that issue. [video clip] >> i keep hearing people say that the founders rejected administration. the fact is colonel mason put it forward, mr. madison raised a concern that the term of the 10 year for the senate. there was some debate, governor morris, governor mason withdrew maladministration. there was no rejection, it was a debate and they withdrew.

instead of a substitute the language was not there at the time. other high crimes and misdemeanors. ok, go back to what does that mean. i was not there. there are debates about what it meant. the one thing is british common law had developed a definition of high crimes and misdemeanors that included but was not limited to maladministration. this is a debate that is worthy of academic debate. the fact is, it is up to us. there are no elements of the crime and the constitution, no specific requirement that there be a violation of statute. it is for us, and us alone, to determine. when the secretary violates his duty to the constitution, his oath to defend the people of the united states and secure the homeland, it is incumbent upon this body to call out and reject that secretary.

in this case, that secretary is secretary mayorkas. host: what do you make of that? guest: give me a minute to unpack that. the bottom line is counselor roy seems to think that high crimes and misdemeanors is what two thirds of the senate take them to be. history is not as counsel roy portrayed it and the british precedents are not relevant. treason is a very narrow concept. in the constitution it is not what treason means to us in ordinary conversation. treason can only occur during war time the purposes of the constitution. bribery is a broad concept. being so broad, it is veryyou na

political action was taken, for example, because a contributor gave money to a campaign to put forward, perhaps, a particular position. because they might have done it anyway. likely that is why the contributor gave him money in the first place. that was mason's problem. george mason said that treason is too tight and bribery is too hard to prove. we need something else. as counsel roy suggested, he said maladministration. there was debate. it was said that that would convert our system to a british system, a system of parliamentary supremacy where prime minister could be removed by vote of confidence. mason accepted that. it is not correct to say that this was left up in the air. mason withdrew the convention

then moved on to bribery sufficient. other high crimes and misdemeanors is not a blank slate. the important word in the phrase is other. trees re-, bribery, and other high crimes and misdemeanors. those are the crimes that are constitutional in nature. it doesn't require statutory violations, but it must have something in common with treason and bribery. it must be a constitutional crime. something that really goes to the heart of the security of the country. host: we will take your calls for professor philip bobbitt until the top of the hour. you can call by party. republicans, (202) 748-8001. democrats, (202) 748-8000.

independents, (202) 748-8002. shortly after january 6 you published this opinion in the washington post with the headline, is impeachment the right instrument to punish donald trump? what is your answer to that question? guest: in the context of the second impeachment, i don't have any doubt that if donald trump had organized this month's-long conspiracy that that would be an impeachable offense. i was pointing out that because it occurred so late in his term, by the time the trial began in the senate he was no longer the president. he was therefore, not the civil officer anymore. the text requires that only civil officers are subject to impeachment. in their zeal to punish

president trump his prosecutors try to dispense that and say that he shouldn't be allowed to get away with what he's done. this is not a legal standard. it is a political standard. i must have heard a thousand times commenters say on television that impeachment is a political matter and not a legal matter. maybe it is becoming so, but this is a constitutional travesty. host: what do you think should have happened after january 6? guest: hindsight is 20/20 as they say. what should have happened is a resolution should have been adopted in both houses and sent to the new administration condemning what donald trump had done and labeling at what it plainly was, the impetus to subvert the electoral process. that would have cleared the decks to agree on the issues now

about the 14th amendment section 3 that forbids a person who has either conducted an insurrection or given aid and comfort to people in an insurrection from holding office. that would have been available to the houses then. after january 6 he would have picked up a number of republicans in both houses. by going for impeachment, which i understand was a natural fallback, i think the great mistake was made. i think in the long run, obeying the law is strictly -- obeying the law as strictly as possible is the best course. host: that brings us to today. you would have heard the oral arguments in front of the supreme court about the 14th amendment. what you make of that? guest: i did listen to the oral arguments. i thought that the questions from the bench were excellent. they tended to focus on whether

or not chaos would result in the electoral process if each state could disqualify a president. i think that is a wise and practical,. -- practical comment. i would be surprised if the supreme court upheld the colorado decision. host: joseph in point pleasant beach, new jersey. caller: how are you? i want to see a couple of things. let me make a couple of my points and then you won't hear from me for the rest of the month. first of all, my grandfather graduated from columbia in 1918, phi beta kappa, his name is on the wall in hamilton hall. his grandson, me, is ultra, ultra maga and he would be disgusted by what is going on in our country. you're telling me that what donald trump did on january 6 was almost impeachable?

what he did was constitutionally allowed. he was protesting the electors put into the state with seven states changing the election laws unconstitutionally without state legislators approval. donald trump was about to do that. the riot was not good and he had nothing to do with that. he made a speech and it got out of hand. the professor, you didn't talk about what they did to president trump. the first week he went into office in the white house they try to undermine him. they had a coup perpetrated by my government. my government. nobody went to jail for that, nobody was impeached, nobody went to jail. host: let's get a response. guest: well, you obviously feel very passionately about this. i'm not sure that we see the

facts in the same way. i have seen the 2020 election repeated over and over, all of the various crimes in the states there. were bases -- there were 60 lawsuits brought about on those bases. they were rejected. there were republican and democratic appointees, the judges were trump appointees themselves. repeating these assertions does not make them true. as for the coup that the caller is referring to, i would be happy to be corrected and informed as to what exactly he has in mind. but just repeating these charges about how the election was flawed and the president gave a speech and danced away, that he wasn't responsible for trying to storm the capital, that the events of january 6 were not part of a month-long campaign begun many months before to try

to give him a safety net if he lost the election, all of those things are ignored. host: when he says that he had the constitutional right for he was constitutionally allowed to challenge the results of the electoral college, what do you say to that? guest: that is what the lawsuits were about. host: eva in columbia, mississippi, republican. caller: i want to talk about joe biden and the impeachment. i want to know who was the first president in the country who was ever impeached and from what. also, they say that all of those documents that he had illegally are not a crime for him because he is old and senile. what about the other stuff? they are investigating the millions that the by thens -- the biden have raked in around the world. they say he was only selling his name. they may have been selling

these boxes of documents. just because of your agent your mental capacity doesn't mean that you should be impeached or in jail, because i'm sure that there are plenty living worse who are old and senile. are we going to open the doors and let them out? joe biden isn't above the law and impeachment has been made a crime simply by the democratic party. host: justice for all. let's get an answer for that. guest: the first question was about the first impeachment. the first president to be impeached was andrew johnson in 1868. the second observation had do with whether or not some elderly person like me is above the law by virtue of decreasing capacity. i think she is right, age alone

does not give us a get out of jail free card, but i think that these things need to be proved. you had a many months long investigation by a trump-appointed attorney, special counsel for the department of justice. it is a full report. i have not read it. i have only seen the headlines, but i don't think, i haven't read anything that supports the claims made by the caller that the materials left in biden's house were sold or barter to foreign powers -- bartered to foreign powers. the newspaper seem to say that biden had been extremely forthcoming. that he had sat for long

interviews and allowed investigators to comb his offices and house. so, i don't think that he is above the law. i don't think that he thinks he is above the law. on that conclusion i agree with the caller. host: there is an understanding that the special counsel decided not to prosecute because of his age and mental capacity. is that true? what are the legal ramifications? guest: i have not read the report. i am not inclined to give a conclusion about it. my guess is that many factors about culpability go into a prosecution. there is an ethical standard that the department of justice, that you should not bring a case that you don't think a jury will convict. that seems right to me. host: joel in newark, new

jersey. democrat. caller: first, is it appropriate for clarence thomas to be sitting on cases where the insurrection is an issue? with regards to that question, if you were to be recused and there were a 4-4 split on the court, what would be the effect of it? with regard to that, can there be a motion filed in the supreme court to have him recused with supporting documentation which would give sotomayor an opportunity to publish a written opinion? the second question is the court yesterday seemed focused on the national rule with regard to the 14th amendment section 3. as the court declared in this

opinion, there is now a national rule that donald trump has been disqualified? is that not their role in the constitutional republic? why are we to say that a provision in the constitution is without any effect whatsoever? is that correct? host: professor? guest: you packed in a number of questions. perhaps if i miss when you can repeat it for me. i believe that the supreme court could have a firm to the colorado fact-finding. the original court held a trial that the president had in fact engaged in insurrection. the problem i believe, and we don't have an opinion yet, the problem i believe is that the court was not persuaded that the

findings of a single state's court were sufficient to trigger the amendment. that does not read section 3 out of the constitution, is simply means that there must be some other method of demonstrating an insurrection as the term is used in that section. for example, the joint resolution of congress a few months ago, there was a criminal statute against insurrection, the former president was tried into that. there are a number of roots rather than having a single state. what i took away from the oral argument was that letting a single state do this would result in a complete patchwork where the former president would be out in some states but not in others. some legislators may react and take president biden off of the roles. i think that that kind of chaos is what they were concerned about. i don't think that they were trying to write the provision

out of the constitution. with respect to clarence thomas, i am not aware that he has taken a position on whether or not president trump engaged in insurrection. i am not sure what the caller has in mind. i think that there are standards for recusal, new standards that have come out in the last few months. in my experience with the judges on the supreme court, they seem to be very capable and conscientious. they differ in their politics and some of their traditional approaches, but i do not think that they are corrupt. i think that charges like that, if that is what the caller was implying, are without evidence, irresponsible. host: republican, good morning.

caller: thank you for having me. this is basically an opinion. i think that it is fairly for us to be a little realistic. that it is better for us to give the managing. by the man, i mean donald trump, chance. we all know he was there. it is not black or white, it is about making the country better, making america better. for me, my question is, if we think that donald trump is trying to make a better america why are we bringing so many obstacles? why are we being so hatred. to show us that he is the one or maybe he is not, why don't we give him another chance? everybody is not perfect. we all have skeletons in our

closets. my question today is, what is stopping us from giving him a chance to show us, ok, what he is saying is true or what he is saying is a lie? guest: well, i think former president trump will have many opportunities to do that. i don't have a crystal ball, but from the oral arguments i think that the supreme court will not strike trump from the electoral rolls on the base of the colorado decision. i think that president trump has other forums in which he will have an ample opportunity to make the case that the charges against him and the four felony jurisdictions are unfettered. he will have good representation. he has a commanding platform. i don't doubt that president

trump and his followers want what is best for the country. i think where we may disagree is how to achieve what is best for the country. host: billy on the independent line in gardendale, indiana. good morning. caller: good morning. i have a comment about the supreme court with the ruling about trump. they cannot allow states to take anyone off of the ballot. if they do, that's the first step of us losing our right to vote. now, the judges will be voting, will be determining our president from now on. another thing, as far as biden and the 25th amendment.

i hate to say it, but it's true. they would have to include our vice president also, harris, because she is not fit to be a dogcatcher, much less -- host: professor, comments about the ballot case? where do you come down on that? guest: well, imagine a candidate ran who is not a natural born citizen, a requirement for the presidency, or who was not 35 years of age? i'm sure that the caller would have no objections to the courts sustaining the removal of such a candidate from the electoral ro lls. how do we know something as complicated as masterminding,

participating, or giving aid and comfort to an insurrection? it is not as easy as to if someone is 35 or a natural born citizen. removing the court in that decision reads the provision out of the constitution. i don't think that people would really like to do that. host: we only have a few seconds left, but i wanted to mention that you have honorary knighthood from queen elizabeth ii in 2021. what was that like? guest: it was a lovely honor. i said at the time that i was just a stand in for countless americans who support the u.s./u.k. special relationship. i was of course very honored, but it was really more of one

person in place of millions of americans who feel strongly about that relationship. host: professor philip bobbitt, co