>> next on american history tv, hostages and scholars philip bobbitt and akhil reed amar discuss and interpret how the u.s. constitution defines impeachable offenses for the president. philip bobbitt , who was legal counsel to the iran contra committee is the co-author of impeachment, the new addition handbook, which was originally published in 1974 during the watergate crisis. the new york historical society hosted this one hour of the. -- event. [ applause ] >> good evening everyone. will come to the new york historical society. i am the

manager of the public programs and it is a thrill to welcome it is for you to the program. the program tonight as part of our bernard and irene schwartz distinguished speaker series and is always, we would like to thank mister swarts for his support which has enabled us to invite so many authors and legal scholars here to the new york historical. i would like to recognize and think our -- think our trustees as well as all of our chairman council members who was with us for all of the great work and support. the program tonight will last one hour and include a question- and-answer session, and asked you are coming in, we had some of volunteers in the audience handing out cards and pencils. if you didn't get a card or a pencil, staff members that include myself will be circulated to the auditorium and given them out and collect them later on in the program and hand them off to our moderator so they can answer some of your questions later on. also, there will be a book

signing tonight with philip bobbitt and akhil reed amar, out in our smith gallery, and that is where the books will be for sale. we do hope you join us for that. so we are very happy to welcome back philip bobbitt, a professor at columbia school of law, and that director of this columbia center for national security. he has served as the associate counsel to the president, and the counselor on the international law at the state department, legal counsel to the senate iran council committee. he is author of the new material in the expanded edition of charles black and his impeachment handbook. we are also pleased to welcome back akhil reed amar this evening. he served as a starting professor of law and political science at yale university and he wrote the forward to the second edition of the charles black impeachment handbook.

in 2017, he received the american bar foundation outstanding scholar reward. we are great people that he is also a member of our board of trustees. our moderator for this evening is benno c. schmidt jr., the former president of yale university. he was the principal author of the 1974 book was by the association of the bar of the city of new york on the law of presidential impeachment and removal. he is also served as ceo and chairman of the edison learning school, and one of the world's leading innovators in primary, secondary, and education. we are grateful he is a member of the trustees and before we begin, we ask that you silence any cell phone and turn off any electronic devices and please join me in welcoming our guests.[ applause ] >> regarding impeachment, the

text of the constitution is pretty straightforward. article 1, section 2, clause 5, states that the house of representatives shall have the sole power of impeachment. section 3 cost six of the same article are -- asked that the senate shall have the sole power to try all impeachment. with the president of united states is tried, the chief justice shall provide -- preside. and no person shall be convicted without the concurrence of two thirds of the members present. article 2 section 4 states that the president, vice president, and all civil officers of the united states shall be removed from office on impeachment for any conviction of treason,

bribery, or other high crimes and misdemeanors. pillow, the start with what might be certainly one of the most fundamental questions we can ask about the process of impeachment and removal. is it a political process or a legal process? >> i think it is a legal process. i think that is a point we should insist on. it is not obvious, the body that tries the impeachment, the senate, is a political body, and the body that impeaches and indicts is a political body. but the text that you just read specifies that whatever the grounds for impeachment are in the house, and those are legal

in nature, they are specified, treason, bribery, other high crimes and misdemeanors, those are legal criteria. whatever the indictment or the impeachment, the proceedings in the house, the senate must try the case. that is not a term we use in politics, it is a term we use in law. the chief justice provides, and he is the judge. he convenes and conducts judicial proceedings. senators who sit at the jury must take a special old, and that oath specifies that they must try the case according to law. so i would say that a lot of the talk that i hear sometimes in journals, in the electronic

media, this is really not a legal proceeding, it is a political proceeding and that is at best a half truth in a very insidious one, because down that path lies impeachment which will divide along party lines and will result in party clauses, which i think undermines the rule of law. >> do you agree. some further support for this idea. it is a mix process as philip told you and it partakes of the political, and in particular, misdemeanors, is -- is not a technical criminal term and we could think of that as misbehavior of some sort, and violating a technical criminal law code definition -- code definition -- definition of a crime that might be necessary. this is also an article 1 of

section 3, judgment in cases of impeachment shall not extend further than blah blah blah, and again the party that is convicted shall nevertheless be liable to punishment according to the law. we are talking about punishment in cases of impeachment and judgment. here is one other way to say it because i think a high crimes and misdemeanors is a bit of a term of art and not an ordinary criminal law term, and that is why it is not given to an ordinary judge or jury. but here is one easy way to see that it cannot merely be enough that you politically don't like the fellow, whether or not it is a president or someone else. let's take the president because this is about a particular presidential impeachment. the constitution says that in order to overcome a

presidential veto, you have tapped two thirds of the house and two thirds of the senate. surely it cannot be the case that the constitution is set up so that you could detour around that by getting rid of the guy who used the veto himself just because of a good faith falsely this agreement because of that but the -- majority the house and two thirds majority of the senate. is a lower bow to overcome a ordinary veto and that is because there is a higher standard. you can overcome a veto, and he has a good faith view, and you have a different view. andrew johnson, who was the first president in the impeachment crosshairs in a serious way, his feet to -- the toe was overcome -- the toe -- veto was overcome about 15

times. they were overturning his the toes again and again. they cannot be a high crime or misdemeanor and that is in the structure of the constitution. we all ended up at the same law school and students of the great charles black would want us to focus not on the text, but the structure of the constitution. since you mentioned andrew johnson, i should mention that he was impeached for trying to fire the secretary of war, and in doing that, he violated the tenure of office act was said certain positions including the secretary of war, the person holding that office cannot be removed the president without the advice and consent of the senate. that is itself plainly unconstitutional. >> the tenure of office act.

>> yes because a president cannot be an effective executive unless he can fire the people that work for him. >> washington insisted on that on the first day. it is called the decision of 1789 in the first congress agreed with him. >> it really cannot be any other way if you are going to have a strong executive. there is one very large consequence to the argument that philip and akhil reed amar, which i completely agree that impeachment and conviction is a legal proceeding, and not a purely political proceeding. the essence of a legal proceeding is that like cases have to be decided light. so the grounds for impeachment have to be, and if you impeach a president whom you don't

like, who is not of your party, with whom you have serious disagreements, you have to be prepared to say that you would impeach a president that you did like of your own party, who had undertaken the same set of actions regarded within the definition of high crimes and misdemeanors. we should just say quickly the first two crimes laid out in the impeachment provision, are treason and bribery, and they are actually quite simple in definition. they may be acutely complex evidentiary principles, particularly around bribery. but the constitution defines treason very narrowly and we know what bribery is, the element of quid pro quo for something valuable bestowed. i take it we would disagree with janel forte when he was speaker the house instead of the potential impeachment of william douglas, that grounds

for impeachment or whatever the house says they are on a particular day. >> i think that is right and even president ford regretted that often quoted remark. i think what people, when people drift into that abyss, it is over the phrase high crimes and misdemeanors. these are not crimes that you find in title 18 of the federal criminal code. but that doesn't mean that they are something that you just think up. one of the argument by charles black is an argument you would've heard in the courts of this country many times in the 19th century. it relies on a latin phrase called some things that law

students used to always study, it simply means things like that. so if i say i would like you to go to the store for a party tonight, please get some whiskey and some wine and some beer, and you come back with a corvette, i think you were not really following my instructions. this is crucial for this potent phrase. treason, bribery, and other high crime and misdemeanors. so whatever they are, these high crimes, these crimes against the state, crimes that threaten the integrity, the vitality and the stability of the state itself, must be like treason and bribery. that doesn't mean that they can be just what ever you would like them to be because you are vexed at the end,.

>> one of the elements of that treason bribery and other high crimes is a violation of the public trust. philip, do you think for impeachment and conviction and removal to be valid, there has to have been a crime committed, an actual crime? >> i don't think that and one reason i don't think that as we are all here in new york city, is because aaron burr was indicted for murder both in new york and new jersey after his notorious duel with alexander hamilton. he fled both jurisdictions, and he was in hiding for a brief period, but then he went back to washington and continued on as vice president. >> and more, he presided over the impeachment try as president of the senate, of

justice samuel chase. >> for which he was widely praised. >> leading one wag to say in most countries, the murderer is arraigned before the judge, but here in america, we had the judge being arraigned before the murder.[ laughter ]>> you can see how we fell into this error. sometimes these myths -- mistakes ping one another. if you think the high crimes and misdemeanors is an open invitation to a political trial, then you want to cabin that saying there must be some underlying cause. in fact, instead of drawing the circle tighter, you have really just made the second error prompted by the first one. >> so a criminal act, for

example, a president announced that he or she was going to rome for a six month holiday and would do no public business, that would not be a crime, but it certainly would be an impeachable offense. is a violation of the public trust that any president has with the people, which is to do the work of the country and not go to rome for six months. >> and you see how someone demeans oneself, and we can think of that is a certain kind of gross misbehavior of a certain sort whether or not strictly speaking, criminal in the ordinary sense. neither necessary nor sufficient, it is a slight difference than an ordinary crime. >> one of the interesting questions about this matter is that there has to be some element of violation of the public trust, and that is what about a serious crime committed

by a president before he or she was elected president? for example, tax evasion. [ laughter ]i mean, we have an example of it just the other morning. i pick up my new york times and read that the president may have been guilty of evading almost $500 million of taxes, i mean, a huge amount. but that was a long time ago. do you think a criminal act, although if that was proven and it hasn't been, but if it was proven, you think that would be grounds for impeachment after 30 years ago? >> i don't think so. hamilton said that it must be a political crime. an ordinary crime, but not just a political fence, a political crime. i don't see tax evasion as falling into that category, and i don't see that you can be impeached for something decades before you took office.

having said that, if a candidate for office was to engage in some kind of conspiracy to pervert the course of an election, we would not want the candidate to be the beneficiary of his or her wrong. that is, so that the election process itself, though it was perverted by someone not yet in office, i take it could be a predicate for impeachment. by the same token, if a president who is not part of this conspiracy was the beneficiary of it, through no wrongdoing of his own, who once in office tried to prevent the investigation of that conspiracy, i think that would be a predicate for it. >> let's take tax evasion.

i do agree that private tax evasion long before someone holds any public office is one thing, but evading your taxes as president and using the irs to avoid the tension, that starts the like an abuse of government power. >> one of the charges against nixon was that in the judiciary air committee in the house and that he had evaded $400,000 worth of taxes while he was president. and the house did not go for that as an impeachable offense. >> but for the grace of god many of them they may have thought, to which these are politicians judging other politicians, and you don't want to set the bar too high because what goes around comes around and your party may have done the same thing. this is where i do have a slightly different take.

this treason, which is explicitly mentioned or committed by very young man or woman, and then much later, that person becomes president, i think i would take the position because treason, even committed by a private person, is the most obvious threat to the integrity of the state. i might take the position that it was impeachable. now here is one other thing. what did the voters know, and when did they know about it? have they ever cured some deep crime in one's past by approving their vote? here, we might treat presidents who come before the sentence is three -- citizens, different than those who do not come before the election. here is a hypothetical that philip mentioned, there is

actually a president that. since we are talking about law, the things that the senate have actually done, with a have tried impeachment, are indeed presidents of a certain sort. i testified before a house judiciary committee about a very corrupt judge, and he was from new orleans. he did all sorts of corrupt things and took all sorts of bribes of the state judge. he became a federal judge and also actually was acting in improper ways, but that was harder to prove. 's defense was that nothing that idea before i became an article 3 judge can count, it is only my official misconduct. and i took the position, and the house agree with me, you lied during her confirmation hearing. you weren't a federal judge yet, but lying in order to get this job was surely actually impeachable, and not just what happened after you took your

article 3 oath of office. the house didn't agree with me. >> this raises a couple of questions. first, on the issue of treason. by that reason, none of the offices of the men of the confederate army could have served as officers of the united states. general long street, who became a republican and was in favor of reconstruction, he would have been vulnerable to impeachment. that seems to me that it proves too much, and in terms of the example, i think that we all agree that because we have discussed this before, that the standards for impeaching a judge are different. >> it is very important at this point to actually talk about it a bit. >> let's talk about whether

asked that our impeachment is very give the first may have committed that. while it may not be impeachable for president, it might be impeachable for a federal judge for example. >> i think there is something particularly galling about asking someone to be tried and sentenced by judge who is known to have lied in a tribunal. it just undermines his or her authority and makes the system seem as though it has been fouled before the trial ever started. a supreme court justice who like hugo black, and maybe one of our greatest justices, may have misled the senate when he denied the ku klux klan, and i think this is a different issue.

he is not a politician or a judge, and a supreme court justice is in a different box and a trial judge, who is deciding the facts of crimes, i think he is in a different box. the text is the same, but the structure is a little different. another way of saying just that point, and in the book by charles black, and the newest addition, and there is a whole new section, and i commend this book and it is a very important book especially with philips addition. >> it is very slender and very easy to read, and is about presidential impeachment, and all the presidents that are discussed about presidential impeachment, and when you say structure, here is an example

about what we mean. with the senate of the united states votes to convict a cabin officer or a judge, you are voting to undo a commission that the themselves basically anticipate because they made that person by their advice and consent, a cabinet officer, a judge. that is one thing to undo the because the senate actually made him a federal judge and he lied to him in the process. it is one thing to undo the actions that you yourself help to make. i just made a structural argument, it is not a textual argument. the text will read the same,

treason, bribery, or other high crimes and misdemeanors. it doesn't distinguish between president, vice president, or judges. but the structures are very different. >> very different. list are now before we get to the question period to some factual situations that have been rattling around in the news as of late. philip, do you think electronic hacking into the emails of the democratic national committee in 2016 before the last presidential election, is that comparable to the break in at watergate, where the republican plumbers crew planted microphones in the office of the democratic national committee? >> yes, i think it is virtually identical. the methods are different, but the ingenuity of burglars is always a cutting edge

technology. [ laughter ]. i think it is very much the same. >> so if it could be shown that a president authorize or knew about in advance and did not stop such a a hacking or encouraged it, colluded in it, that would be an impeachable offense in your view? >> i think that's right and i think the nixon case does provide a president and it is important that we realize that doctrine and president are not confined to courts. the action of the senate and the house and the president inform policy, they all provide constitutional precedents. i would answer a question that you did not ask. i would say of course you are right that a president who contrived to had the headquarters of the opposing party burgled and their private

documents purloined and published or used in some intimidating way, that it would be subject to impeachment. but i would also say from the nixon president, that a president who can strive to have the actions of such burglars not investigating, or use -- or use the federal government to mislead the investigators, even if he, and i think this was true of nixon, was not aware or had not directed or planned the original burglary, then yes, i think that would be a predicate for impeachment. >> here is one of the very important element of the nixon president, and it is different say them from the clinton president. i was not going to say the clinton affair. nixon was brought down and austin by a

bipartisan process in which at the end of the day, he had to go because members of his own party said so. great people like fred thompson, howard baker, and at the end of the day, like barry goldwater, who told president nixon, you don't have even a dozen votes in the senate and i am not with you anymore mister president, once the tapes came out. it only takes a simple majority of the house, but it takes two thirds of the senate, and in today's world, that will mean a buy-in from both parties. >> something like a consensus is required from the senate. >> and i think it is abusive for the house to begin a process and partisan ways because you will not be able to

get a conviction. now clinton, democrats never bought into the impeachment in the house, so very addictively, you did get anything close to two thirds in the senate. so i am a faux! not for partisan impeachment unless members of the own party of this president was on board, they take an oath to do impartial judgment and justice. actually in the clinton experience, i reinterpret that as impartial. try to imagine to what you would do if the political shoe was on the other foot. it is not an ordinary, and perfect ordinary to say that is my party, and it is a republican

platform to do this and the democratic platform to do that. i don't love obama care, but that is what we promise. this is not the perfect tax cut, but that is what we promise. that is not what impeachment is about and it should not be partisan. >> that is why the first question that was put to us is so crucial. if impeachment was just a political question, we would not be disturbed by a breakdown in the senate or the house, but if you went to a jury or a panel of judges, and found that their assessments broke down along strictly partisan lines, you would be appalled, or you should be. how about the disinformation campaign by the russians to help one candidate and heard another candidate in the

presidential election? if it can be shown that the candidate favored by the russians colluded in that or encouraged it, that activity by the russians in some way, with that be an impeachable offense in your view? >> probably, it would depend on who the foreign power was. with the extent of the conspiracy was, and the kansas knowledge, but yes, perverting the course of an election by citing with a hostile power goes right to the heart of the grounds for impeachment that are outlined in the federalist papers. i think, and i would be surprised of my colleagues disagreed, that the federalist papers or possibly our best resource at least with respect to historical argument, to what the is really intended to adopt the language that was read at

the outset. >> i would agree with that. could a president be lawfully impeached for directing his subordinates. >> i don't think there's really much -- much doubt about this. we sometimes hear commentators say very sophisticated commentators will say, that because the president has the discretion to direct the agencies to commence investigations or to drop investigations or to proceed along such promising lines are dropped lines of a less promising or that they may threaten foreign relations or

complexities, because he has that discretion, he therefore cannot possibly be impeached for doing something less than simply by saying, let's shut down this part of the investigation. i don't see it that way. it seems to me that a president who took the heat for turning off the investigation is in a very different position with respect to the public, then one who tries to use the officers of his administration to mislead investigators, or to announce to the public things that are not actually true, as he alleged result of their investigations. sometimes you will hear people say that a president cannot possibly obstruct himself, and of course that is probably true. but a president can obstruct the operations of the government. it is like a joke for my part of the country that someone is

asked, do you believe in infants after the quake he said believe in it, i have seen it done. we saw this at watergate. and i don't think there is much question that a president could be impeached on that basis. >> could the presidential use of a pardon power be a base for impeachment? i think so, and i think it would depend on what basis the pardon was given. some people say that pardon power is unlimited, and therefore, it would be an implicit limitation on that text, or we would impeach for any use of the power. but think about it for a minute . is it possible that you could secure a pardon by a bribe, and that bribery would not be a predicate for impeachment? i think that is obviously nonsense. >> because the text itself says treason, bribery, or other high

crime or misdemeanor. that is easy and right down the fairway and of course, bribery is impeachable, even if the bribe is to get a part of. >> suppose the reason for the pardon is not a bribery. but so that a party that is being pardoned has no incentive to cooperate with investigators, what about that use of the pardon power? >> if the person who is pardoned in this way is an official, that is a bright. we think a bribery in terms of the president taking a bribe, but he is also forbidden from offering a bribe. >> canada president pardon himself?[ laughter ] >> i think that is nonsense. i cannot imagine that it would be

lawful for a president to pardon himself. it is not only that we had these long-standing, cultural convictions they go back beyond the founding of this country. the lawyers and the audience know this latin phrase, which is no man may be a judge in his own case. there are many other reasons why we will not permit a president to pardon himself. the language of granting a pardon, we don't typically grant things to ourselves. but if you step back and say how are rages that would be, professor, i think i just heard you say, take the example of a president who is pardoned, precast because it is procured by a bribe, and he pardons himself, thereby committing another crime for which you must pardon himself again.[ laughter ]

>> we can see this, and i will tell you a lawyer joke, because ordinary people don't think they are funny and neither do the lawyers. who presides at the vice presidents impeachment trial, if you actually read this literally? he is tried by the senate, and he is the prizes i -- and he is a presiding officer of the senate, and of course, it cannot be the case that the vice president presides at his own impeachment trial because nobody is the judge in his own case, and it was so obvious that it went without saying, and they did say, but here is

what they did say, they said when a president is tried, the chief justice presides. why? who else would've presided except the vice president. that needs to be said because it wasn't entirely clear because you said i am not presiding in my own case, but you had this insurmountable conflict of interest, but because it was slightly differs a presiding in your own case, that may be needed to be said. but nobody thought that it needed to be said that you cannot reside in your own case. that actually is what the essence of rule of the law is. because all the way back to -- it goes all the way back to roman times and if you cannot be a judge in your own case, you cannot pardon your own case either. >> there is something to this and the framers and ratifies did not specify some of these laws because they thought better of us.[ laughter ] >> what about an accusation of

criminal behavior against your political opponents or candidates, opposing candidates. you think an accusation of criminal behavior that was unfounded and known to be unfounded at the time it was made by the accusing party, with that be an impeachable offense? >> i think it is a matter of degree. if you were to try to intimidate your political opponents by threatening to criminalize the behavior, throwing them in prison, claiming that they have committed a series of crimes and you made these claims with a reckless disregard for the facts, that seems to me to be the kind of thing that would really pervert the electoral process.

and that is at the heart of a constitutional crime. not an ordinary crime although it might very will be a tort to say that someone is guilty of a crime without any evidence, or in the teeth of contrary evidence. >> before we turn to question, how does the 25th amendment relate to impeachment? >> the 25th amendment and probably everybody knows, was a consequence of the assassination of president kennedy, the concern that if the president had lingered on for some months, as james garfield did before his ultimate demise, that the government would have been his kind of shadow world. we know more now about president wilson's disability that what people did at the time. president lyndon johnson, he had a very serious heart attack back in the 50s, and it is not

inconceivable that he could have had another heart attack, and killed him just a couple of years after he left office. he might've had a stroke that incapacitating him. so the people of his generation became concerned about this after the kennedy assassination. that we ought to find some way to legitimate the removal of a president who is unable to carry out his duties. by providing a specified legal process for doing so. that was the intent behind the amendment. that i am not in much doubt. but the language is broader than that. the language is not limited to a physical disability, and so there have been some people in the last few months who have suggested that this is an alternative route to impeachment. i am skeptical of this myself, but the text is there. what you think? >> they was thinking about the

mental disability. >> let's just say that one of the provisions of the 20 for the member said that even if a president did that stack does not agree that he or she is disabled, that if the the vice president and a majority of the cabinet come forward and say, or a group specified by congress, >> if they come forward and say the president is disabled, the congress can act on that disability. first, we are talking about possible mental disabilities that do not carry any sort of imputation of wrongdoing. you are not a traitor or a

bribe or done something wrong. you cannot discharge the duties. so it is not a moral life the -- lie, the way that actual trials and punishment in cases of impeachment are. it pivots entirely on the actions of the vice president. if he is not on board on this, nothing can happen with the 25th amendment. the vice president has to put him or herself for. third, if the president disputes it, at the end of the day, the congress decides, and there has to be two thirds of each house. so in some ways, it is lower and doesn't require misconduct, but it requires a higher vote of two thirds of the house and the senate, in order to prevent this from being too easy and an end around impeachment. let's turn to some questions that come from the audience. must a trial in the senate apply

particular rules of evidence? could a president be convicted on the basis of hearsay for example? >> i would be happy to defer to my colleagues here because i don't know the slightest thing about criminal trials, and evidence, but as a constitutional lawyer, yes, i can easily imagine that the rules and evidence not being of the same stringency or rigor that we have in an ordinary criminal trial. we are trying to determine if they political crime, not politics, is still something that strikes at the heart of the state, and many of these acts are not things that leave a paper trail, or they require inference and sometimes it is hidden in plain sight. >> also, the penalty for removal

based on the senate conviction is not going to jail, it is just that you are out of office. >> as subject to disqualification for all future office holding. the only people who are impeachable or officeholders and arguably former officeholders. so i am not impeachable because i have never held an office. to la paz and i think he is impeachable. [ laughter ] . he can be disqualified from holding any office of honor, trust or profit in the future. the reason that even though he is out of office, is that you would not want someone one nano second ahead of the impeachment gavel coming down on conviction be able to escape disqualification as well as removal, and i will say that former officers are impeachable, but not mere private citizens. >> that was a little bit like a retainer to me, but i may be taken that to personally. [ laughter ] . >> it is not just about you.

[ laughter ] . >> would you two comment on the relevance of the emoluments clause? as you know, this is one area where people have made accusations against the current president, that he is receiving emoluments in the form of business for his properties from foreign governments and others. >> if you take this as an experiment that a president is receiving substantial amounts of income from foreign governments, just on assumption , that in itself does not strike me as the kind of really serious crime against the vitality of the state. it makes it recipient look unsavory, but it doesn't seem to me to discredit or to disable the constitutional enterprise,

which is what contemplated by impeachment. >> the word emolument has sits an 18th-century ring to it, and we focus on it and we sometimes miss the other words in the sentence, which we should remember. no person holding any office of profit or trust in the united states shall without the consent of congress except of any present emolument or title from any foreign state. here is something where the congress can, if it wants, say, and it may be very important as a practical matter to ask a question when the president control both houses of congress. the same. [ laughter ]

>> who presides over the senate in a trial of impeachment of a federal judge? for example, not the bus from the? >> the vice president, and that was aaron burr when a justice of the supreme court sambo chase is being tried, basically a majority of the senate basically bows to convict him, but not by the requisite two thirds, so he keeps the job. here is a question about a historical episode and are we certain that if nixon had not resigned, he would have been removed from office by the united states senate? it certainly may not have come in this light for an event that has come to place, but i am

about a certain of this event. >> and barry goldwater goes to the oval office and tells nixon that he has less than 10 votes in the senate. >> do you think that obstruction of justice can fit the terms of high crimes and misdemeanors and be an impeachable offense? >> yes i do, and sometimes we hear people say that the attorney general is the chief law enforcement officer. i think you have heard that. that is not right. the constitution does not provide for an attorney general, and congress can abolish the office of the attorney general, and who would be the chief law enforcement officer then? the president is the chief law enforcement officer to our

constitution. imagine the chief law enforcement officer taking pains to obstruct the conduct of the laws of the united states? it seems to me to go just to these kinds of things that the framers and write a fire sat in mind. that is because it is unique to the office itself. you are using the powers of the office to disable, and frustrate the operations of government. >> in fact, the best founded charge against andrew johnson wasn't that he violated the tenure of office act, which was unconstitutional in itself when it said that the president cannot fire the secretary without getting senate approval. you don't need to get the senate approval to fire people, so although that was one that everybody reads about in the history book, i have always

thought that the article in impeachment johnson was the last one, that basically said that you are trying to frustrate systematically the enforcement of the reconstruction statues, in the south, and that is not faithful execution of the office of the president of the united states. i thought that was the best article of impeachment, but they did have two thirds for that either.