gi bsonia, pennsylvania. those are places where we have fiber networks in every street. oles and connecting to the customers. >> tonight at 8:00 eastern on c-span2. the house judiciary committee holds a hearing this week with constitutional scholars as part of the impeachment inquiry of president trump. it is intended to focus on the constitutional grounds for presidential impeachment. the president has also been invited to attend and have his legal counsel participate by asking questions, but over the weekend the white house it declined to participate. we will have live coverage wednesday at 10:00 a.m. eastern on c-span3 and online at c-span.org, and you can listen live with the free c-span radio app. jeffrey rosen's president and

ceo of the national constitution center, joining us here on "washington journal" to talk about impeachment and the constitution, where things stand now. and he has a new book about ruth bader ginsburg. will get to that as well. good morning. thanks for being here. guest: great to be here. host: how does this 2019 impeachment inquiry, where the process is now, how does this align with what the constitution says the process should be? guest: the constitution does not say much about what the process should be. it has a couple of really important things. first, in article one, section two, it says that the house should have the sole power of impeachment. then, in the part about the senate, it says the senate should have the sole power to try impeachments and that impeachment should be presided over by the chief justice. impeachedresident is and conviction is by two thirds of the senate but should not extend further than removal from

office and disqualification to hold future offices of honor or profit. the final section which is really important, and i would love viewers to get out the constitution -- in fact, i will do it to consult the text -- the national constitution center has this wonderful interactive constitution that has convened the top liberal and conservative scholars in america to write about every clause of the constitution. article two, section four. host: let's bring it up on the screen as well. guest: 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. there is going to be a lot of parsing of that language. we should spend a lot of time talking about it today. the great thing about the interactive constitution is you can see the federalist society

and the national constitution society, they have 1000 words about what they agree and disagree about those words. host: let's go into the word "bribery," because it came up a lot in the house intelligence hearings. what direction were they going there in the meaning of "bribery" in that case? guest: "bribery" is really important. and when you look at early drafts of this clause, which are also online on the interactive constitution, you will see the initial formulation was treason, bribery, and corruption. those were the three things the framers were most worried about. that is because the fear was that the president would become a spy for foreign powers, that he would basically bribe a foreign power to help get him elected or, while in office, would be under the pay of a foreign power, excepting the pay of a foreign power, and

essentially selling out the public interest or his own private gain. host: as you watch the current process, is that what you think the house judiciary committee will begin to craft their articles of impeachment? guest: we certainly saw speaker pelosi last week or so focusing ." that word, "bribery gives us aaid this constitutional peg. they talked about the three of bribery, noting that bribery was not defined in federal law until the 1950's, so you cannot tell what the framers thought about bribery because it was not a statutory crime, but the bribe could be the offer of a gift or the receiving of it, according to democrats. host: so one would not have to get a gift, the offer itself could be considered bribery. guest: that is the claim pete i want to say one thing at the beginning. the national constitution center, like c-span, is

completely nonpartisan. i am not endorsing or opposing any of these views. i will describe them for you as best i can, because it is import for me and all your viewers to make up your own mind. look at what democrats and republicans are saying and decide for yourself. but the claim is, both in the common law of bribery and in the statutory crime, which it was eventually codified, if you offered a bribe in exchange for something of value but did not receive it, that would still be actionable and illegal. there is also a separate crime now codified called solicitation. the claim there -- and this is less directly peg to the linkage about bribery, is when the president said russia, go investigate hillary clinton, i am sure you will find something -- that is a solicitor -- solicitation, request, for a foreign country to do something. the argument goes that would violate the crime of attempted solicitation.

host: look at the process with the house judiciary committee now picking up the process. i hate to say the word traditional, but it falls more in line with the impeachment processes we have seen in the past, clinton, nixon? guest: that is a good question. we cannot talk tradition because there are so few presidential impeachments. clinton, nixon, and andrew johnson is it. the constitution does not say anything other than that the house should have the sole power of impeachment. but from the nixon impeachment, the process initially began with hearings, not all of them in the judiciary committee, and eventually, the judiciary committee voted on articles of impeachment. in clinton, began in judiciary, then you had formal articles voted on in the house floor. here, although hearings began with the intelligence committee, the fact that they are now being held squarely in the judiciary committee, all in public, makes it look more like previous

impeachments. host: our guest is jeffrey rosen , head of the national constitution center. we would love hear from you. republicans, (202) 748-8001. democrats, (202) 748-8000. independents and all others, (202) 748-8002. we had a number of comments and questions in our previous segment of people asking me questions about the constitution, one of which was does the house -- if the house and peaches the president, does the house -- does the senate have to take it up as a trial? guest: another great question. the consensus seems to be that, according to senate rules, that the senate does have to pick it up. the constitution, although it does not say the senate must try, it says the senate shall have the sole power of impeachment, and the chief justice shall preside when the president is impeached.

that does anticipate that the senate will hold a trial at the chief justice decide spear there was claim that you could dismiss charges after a day. it is true that the johnson impeachment lasted only three days. that was a case where the votes were not there, and because of that, it was pretty quick. but the senate rules specify a more elaborate procedure with house managers presenting evidence, the chief presiding, and that is why the senate majority leader expects the trial to last at least a week. host: we have plenty of comments and questions. we go to bob on the independent line. caller: my question is there are a bunch of democrat senators running for the office of president. if it goes to the senate, will they have to recuse themselves from any vote for any obvious play or conflict of interest for voting on removing somebody whose job they are trying to

take? guest: such a great question. as you say, if this were an ordinary trial and the senators were jurors, they would have to recuse themselves because of the obvious conflict of interest. there was an interesting moment where one of the senators referred to his fellow senators as jurors hit another senator objected that the senate is not a jury because it is more than a trial, and chief justice that -- heustained i did nothing in particular and did something very well, but he did sustain that objection. that seems to suggest the senate is not like an ordinary jury. impeachment is this complicated, unique mix of law and politics. house, areike the making a constitutional and political judgment about whether it is pertinent to remove from office. in the clinton and johnson

cases, one of the reasons the senate acquitted was the thought that the president is almost in his final year and the voters can decide next year, in any event. for all those reasons, i am senators doat, no, not have to recuse themselves, because everyone recognizes they are a political and legal instrument. host: and it uses the term that the senate will act as a jury -- what is the rule of the majority leader that in the trial? guest: unless it is specified by senate rules, i do not think he has any unique role. he may introduce house managers. but he does not have any more votes than anyone else. it is also up to the senate to decide what kind of evidence to consider. host: let's go to doug in pennsylvania. caller: good morning. wouldn't it be easier to invoke the 25th amendment to remove trump from office?

because it seems he is clearly incompetent and unable to do the job. what do you think? that is a good observation. the 25th amendment, as you know, provides for what happens if the president is incapacitated. the original thought would be he would be incapacitated because of illness -- president eisenhower had a heart attack, and that precipitated the amendment. senator bly said the ultimate judgment about whether the president is capacity needed is a political, not a medical or psychiatric judgment. the reason why the answer is no is that if the group that is allowed to remove the president, a group of cabinet officers, plus the vice president, says he is incapacitated, he can object and say i am not. then the group, this cabinet group, has to override his vote rathera 3/4 than 2/3. it is actually harder to remove

the president, by 20 for the amendment, if he objects. but the initial judgment to remove can be made by a smaller group of people. but it is harder to trigger and sustain it. host: we go to bradington, florida. good morning. caller: thanks for taking my call. an honestng to ask question. if you were an individual and look at how the constitution is framed around the supreme court, would you actually get on an airplane with ruth bader ginsburg flying it or nancy pelosi or mitch mcconnell at any of their ages, flying it? if they were pilots come at their age -- it is time that these people move on and let some middle-aged people with intelligence, and and have their shop running their country. when you get to a certain age, you become a person being malicious. i will let jeffrey rosen

respond to it he has a new book on ruth bader ginsburg -- conversations with f.b.g. -- r.b.g. on life, liberty, and love. what was behind your new book? guest: this is so exciting, to be able to collect 25 years or conversations with justice ginsburg and have the honor of knowing her, ever since i was a young law clerk here. i met her in an elevator. she was a judge coming from an exercise class. i did not know what to say, because she was silent, so i asked what operators -- operas are you seeing recently? she just opened up, so this is a real tribute to her, and allowing her to speak in her own voice and describe her views about law and marriage -- what i find most inspiring is her advice for life. i would not fly a plane with

anyone over 85, but i would absolutely turn over my daily self-discipline and conduct of life to the great justice ginsburg, who is more disciplined about mastering her emotions and passions so they do not get in her way and allow her to focus on productive work. she was able to edit the manuscript for this book last year when she was ill, every page marked up in her beautiful script. and her remarkable concern for others attention to detail and recall of the facts of all of her cases is a tribute to the fact that, at the age of 87 -- or any advanced age -- some people, because of their markable skills and focus and shining light, are able to be just as productive as they were when young. host: and how is she in the last week or so? guest: doing great come out of the hospital after the cold last week. she will be back on the bench tomorrow. host: we read a he's earlier

saying that the house should censure the president. on censure articles instead of impeachment. does the constitution say anything about a remedy like that? guest: the constitution does not talk about censure. that is a remedy that the house and senate have created to express disapproval of actions, short of impeachment. the most famous is the censure of andrew jackson by congress for having done a lot of things, including tried to veto the second bank of the united states and other offenses. the problem with centre is it can be overturned, and that is exact what happened with jackson. after democrats took the majority, they removed the center judgment and cleared his name. a president ever

testified before and impeachment inquiry? guest: no before and impeachment inquiry, but yes, presidents have testified three times. george washington, gerald ford, and one other 1 -- which i do not want to get wrong, so your viewers can find it. woodrow wilson was asked to testify as a president, and he may have submitted testimony in some form on other issues. three live testimonies but no president before and impeachment inquiry. host: is it typical, when the senate takes up the impeachment trial of a federal judge or other official, with that official testify in that sort of impeachment hearing? guest: excellent question. most impeachment hearings have been against judges. something like 18 of them, 9 removed from office. of those, most have been judges. i must say i am not sure whether those judges testified in person. i do not believe they do, but

there you go -- you can find that as well. host: let's go to colorado, independent line. caller: i am shaken about this whole thing. i watched the complete impeachment trials they had the ambassadors and everything. from theirear, statements, that this is pompeo, giuliani, and all of these people. it does not seem like there is an argument against this. where i am shaken by all of this is how can we live in a country where when the congress or the house subpoena somebody, that they can just ignore it without any consequences -- it just seems ridiculous. if you are innocent, you go before the house. you plead your case. and if you are innocent, you are good. but i just think -- i could commit murder and say i just do not want to show up to the

trial? and another, and i would like you to comment on is what do you think how roberts is going to handle the senate? are --e republicans, who who clearly have blinders on and have not watched any of this, start going political with their messages on biden on all this stuff that they could have prosecuted in any 16 and 2017? guest: those are two good questions. first is how is it possible the president can ignore a congressional subpoena? doesn't that put the president above the law? if there are a couple of mechanisms to hold the president on the law -- indictments -- everyone agrees that the present cannot be indicted while in office. impeachment -- but how can you impeach if you cannot investigate and how can you investigate if you cannot subpoena?

some courts have held that the president must turn over documents in response to congressional subpoenas. the supreme court has put those decisions on hold and are deciding what to do with that. and the most famous president is the u.s. v. nixon where the o,preme court said, n president nixon come you cannot ignore a subpoena. above yourtice rises interest in secrecy. so maybe the process will move so fast as the -- that the supreme court will not be able to decide that. but that is founded in the nixon case, which agrees with you. as for chief justice roberts, we will see, but i will imagine he will follow the model of chief justice rehnquist had after all, he clerked for chief justice rehnquist and shares the determination to keep politics

out. the best thing about the studios as i can look out over the capitol, and he will want to leave that trial with the integrity and nonpartisan legitimacy the -- of the court as strong as he began. i imagine that he, like chief justice rehnquist, would sustain a lot of objections. he will not want to keep out evidence or interject himself much. he will want to keep the trains moving. essentially, when the trial is over, he will want to be said about his role that no one remembers exactly what he did but that he was there and impartial. host: we welcome john from michigan to the conversation, democrat line. caller: hey, how are you doing? host: you are on. go ahead. caller: you almost got to what i wanted to know. how can the office of legal their view on

whether a president can be charged with a criminal offense while he is in office when it is in direct conflict with the constitution itself saying that no man is above the law, not even the president? guest: great question. the judgment that the president cannot be indicted while in office, which is office of legal counsel reaffirmed, goes all the way back to the nixon era. it was the solicitor enteral who first made it, but it was reaffirmed by both democratic and republican presidents. so that judgment is not hugely controversial, because the idea is he is not above the law, he can always be impeached, and after impeached, he can be tried in an ordinary criminal court. what makes the barr memo controversial is the claim that, because he cannot be indicted while in office, therefore, he cannot be investigated while in

office, and therefore, he is not amenable to any congressional subpoenas. tried to be as nonpartisan as possible, but that is a more robust vision of the law. it is so robust or adventurous or unsupported by previous admission rations that immigrants are citing that view -- by previous administrations that democrats are citing that view itself as impeachable. like it could be a logjam at the supreme court. you have the two pending tax decisions to make, the new york attorney and the other one, the house committee, in addition to the other court compelling testimony from pompeo, etc. are there expedited procedures the supreme court may use to resolve these things before senate trial? guest: the court can hear cases quickly. it took the travel ban, the

citizens united cases were expedited. but the court is also good at delaying if it wants. if the chief is determined to keep the court out of making really politically contested decisions, it is possible all nine justices may think this looks like a try will be over by january, let's just sit on these cases and maybe it will go away. host: elaine in olympia, washington, republican line. caller: i would like to ask two questions. first has to do with hamilton's impeachment standard. says, and this is a quote, relateffenses, as they chiefly to injuries done immediately to society itself -- how does that pertain to the situation? i do not see the immediacy, and i do not know what society they are talking about.

and then the second part of that , in our other presidential impeachments, there is nothing thate constitution gives congress the right to do the investigative part, right? so that is why they had special counselors and investigators. so i am wondering what gives them the right to do the investigation itself. guest: those are two wonderful comments. i am so glad you found that quotation from alexander hamilton, from federalist 65. everyone should read federalist 65 for themselves and read about hamilton's impeachment standards. as you said, he talks about injuries done immediately to society itself. you ask where is the immediacy and what is an injury to society? hamilton goes on to talk about injuries against the public good, the public interest, when

a president is acting not for the public good for his private gain. and then some of the other framers specified that, like and gouverneur morris, saying that if the president were to take money from ia -- from a foreign power for gain, so the democrats are invoking that for the injury again society standards. saying essentially it is not the case that it has to be criminal in order to be impeachable -- if the president were to be a spy for a foreign power, even if that were not criminal, that is clearly an offense against the public. on the other hand, not every criminal offense is not impeachable. a parking ticket, for example. what you have done is remind us that this definition of what is the public good or what is an offense against society is not self defining. what is immediacy or imminent is

not self defying -- defining. that may be useful for those who say he tried to get an investigation into vice president biden, but because it did not succeed, there was no immediate threat. and just to put the final defense that i think we may see on the table, a lot will turn on questions of motive. some republicans are saying if the president legitimately believed there was corruption committed by vice president biden's son and his goal was to investigate corruption rather than himself, that is serving the public rather than himself and is not an offense against society. what you have done and is a rate framework for our discussion is remind everyone to read the federalist papers and realize these broad claims about public interest are not self defining, although we have examples of cases of impeachment, and make up your own minds. host: she asked about the right

to investigate. as that assumed under the articles of constitution that these powers are given to the house, therefore the house should be able to investigate these charges? guest: it is. on that

7 was there an investigative nixonommittee in the impeachment? >> we just had a wonderful podcast, i do a we the people can't -- podcast. representative holtzman was on from pennsylvania. she said that the investigation began outside the judiciary , not according to different standards from different congresspeople, collecting from information from staff. in the next in case, it centered in the committee and the articles were brought. 30 more minutes for our guest, jeffrey rosen, talking about the constitution. your comments, for democrats, (202) 748-8001 for republicans, (202) 748-8002 for all others.

caller: i don't understand why you guys are still pushing this impeachment. we know that trump did nothing wrong. all the witnesses said i felt or i did not hear him say anything about bribery or any crime they were asked, specifically. i did not hear him commit a crime. so, fire you guys doing this when you know that as soon as he was elected, you started talking about impeachment. mark ziad said the coup has started and now the deep state is bragging that there is a deep state. thank god for the deep state. and they smiled. if you guys keep this up, it just proves that we have pretty much soviet style communist government. and i can't believe you guys are doing this. it has been since day one.

don't shut me off yet, ok? there is something people can watch. at democratic hydra by glenn beck, on youtube. you really want to know what's going on? it is the democrats that went with dirt from the ukraine. they are all in the ukraine with george soros, obama, clinton, eric [indiscernible] and eric ross, they are trying to overthrow countries, which is what george soros does. not you guys, neither of us are advocating for or against impeachment, we are here to answer your constitutional questions about the history and current applications of the impeachment process. but what you said is important, you provided of defense that republicans will make against the charges of impeachment. as you just said, they will say that first no one heard him say explicitly to go withhold the

aid in exchange for investigation. they will say that therefore the testimony of people who overheard phone calls suggesting that an inferring from statements like -- i want you to do me a favor though, which democrats say is a textbook example of quid pro quo, people engaging in bribery never explicitly say unless you do this i will do that. that is about as explicit as you can get. you made a really important -- two other important points. second, you said that the corruption is on the side of the ukrainians and the democrats and therefore the president -- >> it is my pleasure to welcome you this afternoon to our event with the assistant secretary of affairs, east asian david sll