welcome news >> good evening, everyone. welcome to the new york historical society. i'm the manager of public programs here and is always it's a thrill to welcome you to our robert h net auditorium. tonight's program is part of

our bernard and irene schwartz distinguished speaker series and is always the would like to thank mr. swartz for his support, which has enabled us to invite so many scholars here to new york historical. i would like to recognize and thank our trustees, as well as all of out chairman's councilmembers who were with us for their great work and support. tonight's program will last one hour and include a q&a session, a question and answer. as you came in, some of our volunteers in the audience were handing out cards and. if you didn't get one, staff members will be circulating through the auditorium in giving goes out and we will collect those later on and hand them off to the moderator so they can answer some of your questions later on. and also, there will also be able to signing tonight with philip bobbitt and akhil reed amar out in the smith gallery, where the books will be for sale. we do hope that you join us for that. we are very happy to welcome back philip c.

bobbitt, welcome -- murphy center for national security. he has or does the counselor on international law at the state department, legal counsel to the senate iran contra committee it is the author of new material in the expanded edition of the charles l. black's impeachment: a handbook. we are also pleased to welcome back akhil reed aman, sterling professor of law and political science, the author of several books on american law and the const he wrote the forward to the second edition of charles black's impeachment: a handbook. in 2017 he received the american bar foundation's outstanding rewards. we are grateful that mr. amar is also a member of our board of trustees. our moderator for the evening is the former president

of yale university and former dean of columbia school of law. he was the principal author of the 1974 book published by the association of the bar of the city of new york on the law of presidential impeachment and removal and has served as ceo and chairman of edison schools, now edison learning, one of the world's leading innovators in primary, tertiary, and secondary nation and we are grateful that mr. schmidt is a member of our board of trustees and we ask that you please silence any cell phones and turn off electronic devices and now please join me in welcoming our guests. >> regarding impeachment, the text of the constitution is pretty straightforward. article one, section two, clause five, states that the house of representatives shall have the sole power of impeachment. section three, clause six of

the same article adds, the senate shall have the sole power to try all impeachments. when the president of the united states is tried, the chief justice shall preside and no person shall be convicted without the concurrence of two thirds of the members present. article two, section four, states that the president, vice president, and all civil officers of the united states shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. philip, let's start with what might be certainly one of the most fundamental questions we could ask about the process of

impeachment and removal. is it a political process or a legal process? >> i think it's a legal process. that's the point we should insist on. it's not obvious. the body that tries an impeachment, the senate is a political body. the body that indicts is the political body, the house. but the text you just read specifies that whatever the grounds for impeachment in the house, and those are legal in nature, specified: treason, bribery, other high crimes and

misdemeanors. those are legal criteria. whatever the indictment, the proceedings in the house, the senate must try the case. that's not a term we use in politics. it's a term we use in law. the chief jeff we use in law. that chief justice presides, as you heard. he is a judge. he convenes and conducts judicial proceedings. senators who sit as a jury must take a special oath and that oath specifies that they must try the case according to law. so i'd say a lot of the talk i hear sometimes, in journals, on the electronic media, but this is not really a legal proceeding, it's a political proceeding and that is at best a half truth, and a very insidious one. because along that path lies impeachment divides along party lines and

that result from party causes and that, i think, undermines, i think, the rule of law. >> do you agree? some further support for this idea? >> it is a mixed process, as philip told you, it partakes of the political, in particular, misdemeanors, i don't think it is a technical criminal term, i think we can think about it as misbehavior of some sort, violating a technical criminal law code definition for a crime might be neither necessary for efficient, but here are some words, which are very much law words. and i will give you one final point. this is in article one section three, judgment in cases of impeachment shall not extend further than blah, blah, blah and again it talke about the party convicted shall nonetheless be liable liable to punishment according to the

law. so we're talking about punishment in cases of impeachment and judgment. here's one other way to say it. because i think high crimes and misdemeanors is a bit of a term of art and not an ordinary criminal law term, that's why it's not given to an ordinary judge or ordinary jury. but here is one easy way to see how it cannot merely be enough that you politically don't like the fellow, whether it's a president or someone else who's impeachable. let's take the president, because this is particular to presidents. the constitution says that in order to overcome a presidential veto, he has to have 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 about by getting

rid of the veto himself just because of a good-faith policy agreement, because you have a two thirds majority in the house and senate. it's a lower vote than it is to overcome an ordinary veto, but that is because it is not a mere policy disagreement. you can overcome a veto. he has a good-faith view on policy, you have a different view. andrew johnson, the first president in a the impeachment crosshairs in a serious way, his veto was over, about 15 times. and yet, it was only at the end of the process but he eventually was impeached and ultimately acquitted, even though they were overturning his vetoes again and again and again. mere good-faith vetoes can't be a high crime misdemeanor, and that is in the structure of the constitution as well as the text. we ended

up at the same law school, the three of us are all students of the great scholar charles black, who would want to focus not only on the text, but the structure of the institution. >> i should mention that andrew johnson was impeached for trying to fire the secretary of war stanton, and in doing that, he violated the tenure of office act, that said that certain positions, including the secretary of war, the person holding that office could not be removed by the president without the advice and consent of the senate. that is itself plainly unconstitutional. >> the tenure of office act itself. >> the tenure of office act, because a president cannot be an executive in office unless

he can fire those who work for him. >> and washington insisted on that. in congress agreed with him. >> right, and you cannot have it any other way unless you have an executive. there is one very large consequence to the argument that philip and akhil -- with which i completely agree, that impeachment is a legal proceeding and not purely political. the essence of a legal proceeding is that like cases have to be decided like cases have to be decided like, and so the grounds of impeachment have to be -- if you impeach a president whom you don't like, who's not of your party, with whom you have serious disagreements, you have to be prepared to say that you would also impeach a president that you did like, of your own party, who had undertaken the same set of actions regarded as within the definition of high crimes and misdemeanors. we should just say quickly that the first two crimes laid out

in the impeachment provision, treason and bribery, are quite simple in definition. there may be acutely complex evidentiary questions, particularly around bribery, but the constitution defines treason narrowly and we know what bribery is, the element of quid pro quo for something valuable bestowed, and official act, so i take it then, we would disagree with gerald ford when he was speaker of the house and set up a potential impeachment of william o. douglas, that grounds for impeachment are whatever the house says they are on any particular day. >> i think that's right. i think even president ford regretted having made that

often quoted remark. i think when people drift into the abyss, it is over the case "high crimes and misdemeanors." these are not crimes, as you and professor amar said, that you find in title 18 of the criminal code. but that doesn't mean that they are something you can really concoct. one of charles black's arguments 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,

eiusdem generis something that law students used to always study, and it simply means "things like about." so if i say, i would like you to go to the store for a party tonight, please get some whiskey, some gin, some wine, some beer, and to 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 crimes and misdemeanors. so whatever they are, these high crimes, crimes against the state, crimes of that threaten the integrity, vitality and stability of the state itself, must be like treason and bribery. and that doesn't mean that they can be just whatever the hell you would like them to be some of because you're so vexed at the incumbent. >> one other element of that, high crime, is a violation of public trust. now, philip, do you think that 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, is because aaron burr was indicted for murder both in new york and in new jersey after his notorious deal with alexander hamilton. he fled both jurisdictions and then he went back to washington and continued on as vice president. >> and furthermore, he presided over the impeachment trial, as president of the senate, of justice samuel chase. >> for which he was widely praised. >> leaving one wag to say that

in most countries, the murderer is arraigned before the judge here in america we have the judge being arraigned before the murderer. >> you can see how we fell into these errors. sometimes these mistakes feed on each other. if you think "high crimes and misdemeanors" is an open it invitation to a political trial, then you will want to a cabin that my saying, well there must be some underlying crime. in fact, instead of drawing the circle tighter, you've really just made a second error prompted by the first one. >> so a criminal act is -- so, 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 would certainly an impeachable offense. it's 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 textually you see demeanor, how one demeans oneself, how one behaves, we could think of it as a certain kind of gross misbehavior of a certain sort. whether or not strictly speaking, criminal in the ordinary sense. neither necessary, nor deficient. it is a slightly different than an ordinary crime. >> one of the interesting questions about this matter that there has to be some element of violation of the public trust, is what about a serious crime committed by a president before he or she was elected president? for example, tax evasion. i mean, we have an example of it. just the other morning, i picked up my "new york times" and read that the president may have been guilty of evading the most $500 million of taxes, i mean, a huge amount. but that was a

long time ago. do you think a criminal act, if that may not be proven, of course it hasn't been, but if it were proven, do you think there would be grounds for impeachment? >> i don't think so. hamilton, in a number 60 five of the founder list, says that it must be a in a number 65 of the federalist, he says it must be a political crime. i don't see tax evasion as falling in that category, and i also don't think that you can be impeached for something for decades before you took office. having said that, if a candidate for office were to engage in some kind of conspiracy to pervert the course of an election, we wouldn't want the candidate to be the beneficiary of his or

her wrong, so that the election process itself, though it was perverted by someone not yet in office, i think could be a predicate for impeachment. by the same token, if a president who was 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 the conspiracy, i think that would be a predicate for it. >> i veer off just a bit. the state tax evasion -- i do agree that private tax evasion --

taxes as president, and using the irs to avoid detection, that starts to look like an abuse of government power. >> one of the charges against nixon was that, i that he had evaded $400,000 worth of taxes while president. and the house did not go for that as an impeachment offense. >> there but for the grace of god go many of them. that may have thought to had this is politicians and judging other politicians, and you don't want to set the bar too high, because what goes around comes around for president. but here is where i have a slightly different take. if treason were committed by a very young man or woman, and then much later, that person becomes president, i think i would take the position that 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 that was impeachable. now, here's 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 their approving vote by approving a vote? and here is where we might treat them differently. here is one hypothetical philip mentioned, there is actually a precedent on that. since we are talking about law, the things of that the senate have actually done, tried impeachment, are indeed precedents of a certain sort. i testified before the house judiciarty committee about a

very corrupt judge from new orleans in the senate judiciary committee. he took all sorts of bribes as a state judge. he became a federal judge and he also actually was acting in improper ways, but that was hard to prove. his defense was, actually, nothing i that did before i became an article three judge can count, it is only my official misconduct. and i took the position, and the house agreed with me, you lied during your 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 three oath of office, and the house agreed with me. >> this raises a couple of rather naughty questions. first, on the issue of treason, by that reasoning, none of the officers and men in the

confederal none of the officers of the confederate army could have served in state office. one general who became a republican would have been vulnerable to impeachment. in terms of that example of the judge, i think we all agree, because we discussed this before, that the standards for impeaching a judge are different. >> this point is very important. let us actually talk about it a bit. i don't want to -- >> let's talk about whether acts that are impeachable may vary given the person who may have committed the act so that what might not impeachable for a president, might the impeachable for a federal judge, for example.

>> that's right, and i think there is something particularly galling about asking someone who has been tried and sentenced by a judge who has is known to have lied in a tribunal. it makes the system seem as though it has been fouled before the trial even started. when there is president, a vice president, a supreme court justice who, like hugo black, one of our great justices, may have misled the senate when he denied that he was a member of the ku klux klan, before the court. i think it is a different issue. the president is in one box. he is a politician and not a judge. a supreme court justice is in one box. and a trial judge, someone will actually decides facts on

crimes and criminal cases. the text is the same, but the structures are all different. >> so another way of saying just that point, in charles black's book, which is a new edition, there is a whole new section by professor bobbitt, and i commend this book >> very important book, especially with philip's addition. >> it is very slender and easy to read and it is about all the precedence on presidential impeachments. when we say structure, here is one example of what we mean. when the senate of the united states, as an impeachment court, votes to convict, let's say, a cabinet officer, or a judge, they're voting to undo a commission that they basically

participated in. they made that person by their advice and consent, the senate did, a cabinet officer, a judge. it is one thing to undo their own the judge became a federal judge because the senate made him a judge and he lied to them in the process. that's one thing to undo an action that you yourself help to make. it's a very different thing for the senate to undo a national election. i just made a structural argument. it's a textual argument. as philip told you, as benno told you, the text reads the same. treason, bribery, high crimes and misdemeanors. it does not distinguish between judges, presidents, cabinet officers. but the structures are very different. >> let us turn to some factual situations that have in

rattling in the news 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 -- where the plumbers's crew planted microphones into the office of the democratic national committee? >> i think it is virtually identical. the methods are of the thieves different, but the ingenuity of burglars is always a cutting-edge technology. yes, i think it is very much the same. >> so if it could be shown that a president authorized or knew about in advance or didn't stop

such a hacking, or encouraged it, colluded in it, that would be an impeachable offense in your view? >> i think that it's right. the nixon case does provide a precedent. it's important to realize that doctrine and precedent are not confined to courts. that the action of the senate and the house, the action of presidents and policy, all provide constitutional precedence. i would say -- i'd answer a question you do not ask their weird i would say, of course you are right, that a president who contrived to have the headquarters of the opposing party burgled and their private documents purloined and published or used in some intimidating way, would be subject to impeachment, but i would also say, from the nixon precedent, that a president who contrived to have the actions of such burglars not investigated, or who used

the instruments of the federal government to mislead the investigators, even if -- i think this was true of nixon -- even if he was not aware or had not directed or planned the original burglary, yes, i think that would be a predicate for impeachment. >> and here's one other very important element of the nixon precedent. it is different, let's say, from the clinton precedent. i almost the clinton affair, and you were going to laugh when i did not say that. nixon was brought down and ousted 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, like lowell riker, like howard baker at the end of the day, like mr.

republican barry goldwater who told president nixon, you don't have even a dozen votes in the senate and i'm not with you anymore, mr. president, once the smoking gun came out, once tapes came out. it only takes a simple majority in 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. >> and i think it is abusive for the house to begin a process in hyper partisan ways because you will not be about to get a conviction. now clinton, democrats never bought into the impeachment in the house, so very predictably, you didn't get anything close to two thirds in the senate. so i'm a

foe of partisan impeachment. senators take an oath to do impartial justice. i take that to mean im-party-al. imagine what you would do if the political shoe were on the other foot, which is a deep theme of charles black's book. it is ordinary to say well, that is my party, it's the republican platform to do this, it is the democratic platform to do that. i don't love obamacare but that's what we promised, it is not perfect

this tax cut, but this is what we promised. but that is not what impeachment above, it should not be partisan. >> the first question put to us is so crucial. if impeachment were just a political question we would not be disturbed by a breakdown in the senate or the house, we would expect that it. 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 hurt another candidate in the presidential election? if it can be shown that the candidate favored by the russians colluded in that or encouraged that activity by the russians in some way, would that be an impeachable offense in your view, philip? >> probably, it would depend on who the foreign power was? it

would depend on what the extent of the conspiracy was, the candidate's knowledge, but yes, perverting the course of an election by siding with a hostile power goes right to the heart of the grounds for impeachment that are outlined in the federalist papers, and i think -- and i hope my -- i would be surprised if my colleagues disagreed, but the federalist papers are perhaps our best resource for what ratifiers really intended. >> i would agree with that. could a president be lawfully impeached for directing his subordinates to mislead investigators or not cooperate

with investigators with respect to investigations related to activities in a presidential campaign? >> i don't think there really should be much doubt about this. we sometimes hear commentators say -- very sophisticated commentators who say that because the president has the discretion to direct the agencies to commence investigations, to drop investigations or proceed among such promising lines or drop lines of that might threaten foreign relations or may be less promising, other complexities because he has that discretion, that he therefore cannot possibly be impeached for doing something less than that 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 an investigation is in a very different position with respect to the public, than one who tries to use the officers of his administration to mislead investigators, or to announce public things that aren't actually true, as the alleged result of their investigations. sometimes you will hear people say that a president can't possibly obstruct himself. and, of course, that's probably true. but he can abstract the operations of the government. it is like that old joke from my part of the country. someone is asked, do you believe in baptism? and the man says, "believe in it, hell, i've 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 pardon power either -- be the basis of impeachment? >> i think it would depend on what basis the party was given. some people would say, the pardon power is unlimited and therefore, it would be an implicit limitation on that text. or we to impeach for any use of the power. but think about it for a minute, is it possible that you could secure a pardon for 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." of course, bribery is impeachable, even if the bribe is to get a pardon. >> suppose the reason for the pardon is not a bribery, but so

that a party that's being pardoned has no incentive to cooperate with investigators. what about that use of the pardon power? >> if the person who is subordinate in this way is an official, that is a bribe. we think a bribery simply in terms of the president taking a bribe, but he is also forbidden from offering a bribe. >> can a president pardon himself? >> i think that is nonsense, i can't imagine it being lawful for a president to pardon himself. it's not only that we have these long-standing, cultural convictions that go back beyond the founding of

this country. the lawyers and the audience know this latin phrase, nemo iudex in causa sua, no man may be a judge in his own case. there are many other reasons why we would not permit a president to pardon himself. the language of granting a pardon, we don't typically grant things to ourselves. it but if you step back and say, how outrageous that would see. professor, i think i just heard you say it, take the example of a president who is pardoned whose pardon, procured by a private, is impeached, then he pardons himself, and it infinitely regresses. >> xeno's paradox. >> i will tell a lawyer joke,

well, a law joke. ordinary people don't think lawyer jokes are funny, so, who presides--this is a law joke. who presides at the vice president's impeachment trial, if you actually read this literally? because he is tried by the senate, and he is a presiding officer of the senate, the vice president, and of course, it cannot be the case that the vice president presides at his own impeachment trial and that was so obvious that it went without saying, so they didn't say it. here is what they did say they said, when a president is tried, the chief justice presides. why? because who otherwise would have presided, it would've been the vice president who stood to gain who stood to gain. you would have this insurmountable conflict of interest, but because it was slightly different than presiding in

your own case, that maybe needed to be sent. but nobody thought it needed to be said that you couldn't presiding own case. of course you can't. that is what the essence of the rule of law is. blackstone says it, it goes all the way back to cicero in roman times. if you can't be a judge in your own case, you cannot be a pardoner in your own case either. it's the first principle of the rule of law. >> the framers and ratifiers did not specify some of these bars because they thought better of us. >> what about criminal behavior against your political opponents or candidates, opposing candidates? do 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, do you think that would 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, or 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 the kind of thing that would really covered the electoral process. and that is at the heart of a constitutional crime. not an

ordinary crime, although, it might very well be a tort to say that someone is guilty of a crime without any evidence, or in the teeth of contrary evidence. >> philip and akhil before we turn to questions, how does the 25th amendment relates to impeachment? >> the 25th amendment, as probably everybody in here knows, was a consequence of the assassination of president kennedy, the concern that if the president had lingered for some months, as james garfield did before his demise, that the government would have been in this kind of shadow world. we know more now about president wilson's disability than what people did at the time. president johnson, lyndon johnson, had had a very serious heart attack back in the 50's, and it's not inconceivable that he could have had another one that killed him just a couple of years later after he left office. he might've had a stroke that incapacitated 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. now, that was the intent behind the amendment, of that i have no doubt. but the language is broader. the language is not limited to a physical disability. that have been some people in the last few months was suggested that this is an alternative route to impeachment. i am skeptical about this myself, but the text is there. what do you think, akhil? >> they surely were thinking about mental disability -- >> one of the provisions of the amendment says that even if a president does not agree that he or she is a disabled, that if the vice president and a

majority of the cabinet come forward and say -- >> or a group specified by congress -- >> or a group specified by congress, if they come forward and say the president is disabled, then the congress can add on that disability. >> two things maybe three things, to remember. first, we are talking now about possible mental disabilities that kerry now certain of imputation of wrongdoing. it is not because you are like a traitor or a briber. it is not that you have done something wrong, it is just that you cannot discharge the duties. so it is not more lies, the way that actually

trials and punishment in cases of impeachment are. so it is very different, it is not moralized. it depends entirely on the actions of the vice president. the vice president is not on board with this, nothing can happen, under the 25th amendment. the vice president has to put him or herself forward. and third, if the president disputes it, the end of the day, congress decides, and there has to be two thirds of each house. so in some ways, it is a lower, it doesn't require misconduct, but it requires a higher vote in the senate and the house as well, precisely in order to prevent this from being too easy and end around impeachment. >> let us turn to questions that have from the audience. must a trial in the senate apply particular rules of evidence? could a president to be convicted on the bases of hearsay, for example? >> well, i'd 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 the rules and evidence the rules of evidence not being of the same stringency or rigor that we have in an ordinary criminal trial. what we're trying to determine is a political crime, not politics, but still something that strikes at the heart of the state, and many of these acts are not things that leave a paper trail. they require inference something -- sometimes it's hidden in plain sight. >> well, and also, the penalty for removal based on the senate conviction is not going to jail, it's just that you're out of office. >> and subject to disqualification from all future office holding. and the only people impeachable are

officeholders and former officeholder. so i am not impeachable because i have never held an office. philip, i think he is impeachable, and he could be disqualified from holding any office of honor, trust or profit in the future. and even though he is out of office, the reason he would be impeachable is that we wouldn't want somebody one nanosecond ahead of the impeachment gavel coming down on conviction to be able to escape disqualification or removal. so i would say that former officers are impeachable, but not mere private citizens. >> that sounds like a bill of detainder to me but i may be taking this too personally. >> it is not just about you. >> 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's receiving emoluments in the form of business for his properties from foreign governments, from

others. >> will, if you take it as a thought experiment that the president is receiving substantial amounts of income from foreign governments, just on assumption, that in itself does not strike me as a serious crime against the vitality of the state. it makes the recipient look unsavory, but it doesn't seem to me, to discredit or to disable the whole constitutional enterprise. which is what is contemplated by impeachment.

but i'd like to know what professor amar thinks. >> the word "emolument" is such an interesting word, such an 18th-century ring to it. sometimes we miss other words in a sentence which are important to remember. no person holding any office, profit or trust in the united states shall, without the consent of congress, accept of any present emolument from any other president, king, of any other state. so the congress can, if it wants, say, it is ok by us, which is why think it is very important as a practical matter to ask the question whether the president's party controls both houses of congress. just saying. >> who presides over the senate in a trial of impeachment of a federal judge, for example, the vice president? >> the vice president. aaron

burr, when a justice of the supreme court is being tried, he keeps his job because the justices of the senate vote not to impeach him. >> here is a question about a historical episode. are we certain that if nixon had not resigned, are we certain that he would have been removed by the senate? >> i am certain about as i am of any other event, it was forestalled by resignation, yes. >> and barry goldwater goes to the oval office and tells nixon that he has less than 10 votes in the senate.

>> here is a question, do you think that obstruction of justice can fit the term "high crime or misdemeanor" and be and impeachable offense? >> yes, i do. sometimes we hear people say that the attorney general is the chief law enforcement officer. i bet you've heard that bandied about. that is not right. the constitution does not provide for an attorney general. congress could abolish the office of attorney general they cannot abolish the presidency. a president is the chief law enforcement officer in our constitution. imagine the chief law enforcement officer taking pain stops talked the conduct of the law of the united states. it seems to go to just

the kinds of things that the framers and ratifiers had in mind, because it is unique to the office in itself. you are using the powers of the office to disable and frustrate the powers of the government. >> and in fact, the best-founded charge against andrew johnson wasn't that the he violated the tenure of office act, which as benno told you was unconstitutional in itself when it said the president cannot fire his secretary of, without getting approval cannot fire his secretary of war. so that is the one everyone reads about in the history books, but i have always thought that the soundest article of impeachment was the last one. that basically said, you are trying to frustrate systematically the

enforcement of the statutes of reconstruction in the south. was thought that was actually the best article of impeachment. but they did not have two thirds for that either. >> we know from a historical note, or at least if we think they are accurate, that at the constitutional convention, hamilton and madison both responded to the charge, that having a unitary executive as president, a president of only one person rather than a committee, that that was on the road to monarchy. and they both replied that the four-year elections, you can throw the scoundrels out, vote them out, and impeachment was a guardian against a president assuming the status of a monarch. and we know in the ratification debates, as well, that concerns about the executive becoming too powerful in several states

were answered, again, by citing the impeachment clause as well as the frequency of elections, so that in the constitutional forming age, impeachment was a rather important part of the overall structure that would keep the executive power in check. >> huge. we're coming to the end, but it is such a big point. it's hiding -- as philip said, some of the biggest things hide in plain sight. think about it. they are reacting to the world when they were schoolboys, it was a monarchy. and here are the two basic features about the monarchy: you don't pick the guy, and you can't get rid of him except by chopping his head off. that's the english civil war and revolution. and now, oh,

you will be able to pick him up front, and he has to be subject to periodic reelection, and if he misbehaves, you have a democratic way of ousting him that does not require you to chop his head off or claim that he has abdicated when you push -- so, james the first, england, great britain doesn't have a good way of dealing with someone who is unfit and you don't have the front end check of impeachment. that is the difference between america's presidency and britain's monarchy. >> and i wanted to add to that, if you look around the world, you see presidents who, if they lose or abort an election, simply refuse to leave office. i think it's a point of great pride in this country that in the middle of a civil war, we

held an election right on time. in the middle of world war ii -- >> and lincoln, as late as august of 1854 thinks he is going to lose. he gets every cabinet officer to sign a piece of paper, they can't see it but essentially to notarize it, and what they are signing is his land, that if we lose the election, we will do our best to win the war until the end of our four-year term and then we will hand over the keys to the next fellow and it is up to him, then. >> we're the only democracy that has elections during wartime. >> he was about to tell you about what the brits did, philip. >> and of course it was madison during the war of 1812 who held -- who set the precedent and that every four years, there is an election, even if we are at

war. >> in britain, on october 31 1935, churchill gives a speech in which he said nobody under 21 has voted for a member of parliament. they suspended elections between a 1935 and 1945, basically. that's what they do. and we hold elections on time. >> and yet, if impeachment was such an important part of the structural debate during the convention and ratification process, are you surprised that we've had only three instances of presidential impeachment in our history? >> not really. >> we've had a lot about presidents. >> i think it's functioned as we promised the ratifiers. it really succeeds when it gets parties, senators and congressmen, and presidents to

obey the will of law. and doesn't succeed it just when it is invoked and carried to conviction. it succeeds when it deters, thus i know we are about to close, but i just wanted to make this one point we began talking about how impeachment is a matter of law. it's not a matter of politics, and how one party divisions result in a impeachment votes, we are suspicious of them because they do not look like an ordinary legal proceeding. someday, our grandchildren, great-great-grandchildren, some of our successors, will have more perspective than we do on what our greatest contribution, the legacy of this country will be. i'm convinced that it will be our adherence to putting the state under law. there's really nothing more precious than that,

and it was rare and among modern states unprecedented when we did that. it is not just a fixation of law professors and lawyers. following the rule of law in the greatest matters as well as in the smallest, is something that we want to insist on in this country. it is not just something that we are ourselves or each other, as a matter of self-respect, it's something we own the people who come after us, because of generations who bequeathed us this system, with some very rare exceptions, have suffered so much to keep that tradition alive and make sure it flourished. >> ladies and gentlemen come our time is up. i want to thank philip and akhil, two great authorities and dear friends.

>> once again, before you all leave, we would like to invite you all to join us for the book signing. benno, thank you very much for moderating our talk tonight. thank you, all.