income eligibility for which americans would get that check. as you pointed out earlier, janet yellen is open to lowering that threshold for people who make $60,000. i think it was up at $75,000 in this last round from last year. she wants to lower that threshold to about $60,000. that would mean less people would be eligible for that full check. joe mentioned, the moderate -- joe manchin, the moderate democratic senator from west virginia, has looked at a $50,000 level. that means less people would be eligible for the full check. they are toying around with the price tag of this $1.9 trillion package. one way they could go with that is to listen the amount of people who could be eligible for those checks. host: scott wong reports for the

hill, joining in to give us the status report for impeachment and the mechanics of working through this proposal by the president on covid relief. washington journal continues. host: joining us now is a law professor at the university of baltimore, also author of how to read the constitution. inks were coming back on the program. guest: thanks for having me. host: we talked with you on the first impeachment trial. can you remind our viewers what to expect as far as the processing formalities this time around. guest: we will see the trial briefs that will layout cases. it is unclear whether we will actually have live testimony. if viewers recall, last time there was a debate between republicans and democrats as to whether directly call witnesses, it turned out there were no witnesses called.

my understanding that the democrats are planning primarily to make the case through video evidence and the president's tweets, so that is unclear. in theory, the senators are the jurors. instead of the chief justice of the u.s. supreme court, senator patrick lady will preside over the trial and we will see each side make its case. the house impeachment managers are the prosecutors on behalf of the democratic side. they will make the case that donald trump knowingly incited insurrection on january 6, and then we will hear primarily legal arguments from the defense about the propriety of trying a private citizen, given that donald trump is no longer the president of the united states. host: let's start there. that the constitution scope out any legitimacy for that argument?

guest: the constitution mentions impeachment six times. the framers cared a lot about impeachment but it does not expressly state one way or the other whether a trial can happen after someone leaves office, but there is, historically, a secretary of war. there is an example of someone leaving office and then actually having a trial after leaving office. there is precedent for that. i think the weight of the legal authority is that it is not all that persuasive, but it is unconstitutional. the only way we definitively would know that is if it went to the supreme court and there is no way for that to happen really any meaningful way. i think the fact that the trial is happening means is constitutional because the united states congress decided to go forward with it. and without the ability to have a trial after someone leaves the office, not just the president,

someone could quit and avoid a trial altogether which would sort of nullify the trial part of the impeachment process. i think it is a pretty weak argument, frankly, that it is unconstitutional to have the trial right now. host: there is a lot of attention being made to an op-ed in the wall street journal by a conservative lawyer who makes the argument saying that this process is constitutional. if removal were the only punishment that can be imposed, the argument against trying former officers would be compelling, but it isn't. the senate can impose an optional punishment on conviction. to hold and enjoy any office of honor and trust under the united states. and then he adds, that punishment can only be imposed on former officers. can you expand on that? guest: with the argument is, in the constitution, it provides for two possible remedies. just so everyone is clear, this is not a criminal trial. a criminal trial can put someone

in jail. that has to happen through the judicial branch. this is primarily when someone is still in office, a decision as to whether someone should keep their job. it is a hiring-firing decision. the constitution provides for another remedy and that remedy is to prevent someone from holding public office in the future. for that, as the writer indicates, that doesn't depend on whether someone is still sitting in office or not. for that part of the constitution to be meaningful, the trial makes sense after donald trump leaves office. it is the remedy. the idea is the penalty is that this was so serious that he really is not any posture to legitimately run again or there are dangers to having him in office again, given how things wound up with violence the first round.

host: our guest is with us if you want to ask her questions about what to expect on the second impeachment trial. you can text us your thoughts and you can also offer your thoughts on twitter and on our facebook page. the house impeachment managers targeted several sections of the president's speech on january 6. i want to play you one section now that was highlighted and then we will talk to you about it after that. trump: now it is up to congress to confront this egregious assault on our democracy. and after this, we are going to walk down, and i will be there with you, we are going to walk down. anyone you want, but i think right here, we are going to walk down to the capitol and we are going to cheer on our brave senators and congressmen and women and we are probably not going to be cheering so much for

some of them. because you will never take back our country with weakness. you have to show strength and you have to be strong. we have come to demand that congress do the right thing. and only count the electors who have been lawfully slated. lawfully slated. i know that everyone here will soon be marching over to the capitol building to peacefully and patriotically make your voices heard. today, we will see whether republicans stand strong for integrity of our elections. but whether or not they stand strong for our country. host: i want to emphasize you're not a house impeachment managers, but is there an argument to be made for incitement? guest: yes, the argument is that he stood and said we are going

to march to the capital and that we need to show strength, not weakness and we need to take our country back. that is a call for taking action and we heard some of the people that participated in that event say i heard the president calling me to actually storm the capital. on the other hand, we also heard him use the word peacefully. so i think the argument would be on the contrary, listen, he was only calling them to sort of stand there and protest and speak, not to actually storm the capital, but there are more facts that the democrats have to build the argument that he knowingly incited violence in particular when the crowd was shouting "hang mike pence." after that shout went up, the president tweeted something about mike pence being cowardly. the argument would be that he

knew about the potential for violence and he stoked that violence by encouraging potential harm to the vice president of the host: the president's lawyer, at least one of the team was on the radio station in philadelphia. he talked about this idea of incitement, at least the arguments that he was planning on bringing up in this process. we want to play a little bit of that interview and then get your comments on it. >> there are statutes that deal with incitement of riots, and it is not even close that the president engaged in what could be considered criminal conduct. and then there is a test called the brandenburg test set out by the supreme court. i analyzed that at length, and that is not even close to it. i don't believe there is a chance in the world that they are going to be able to demonstrate that he committed those crimes, or even anything approaching them where you can

make the argument that it was perhaps beyond a reasonable doubt, but more likely than not, i don't think there's going to be any possibility at all. at some point in this country we have to recognize that people are responsible for their own actions. the president deplores the violence of the capital, and those people should be punished. but just because somebody gave a speech and people got excited, that doesn't mean that it is the speech maker's fault, it is the people who got excited. host: that is a preview of the argument we are going to hear, what do you think? guest: first, this is not a criminal trial. it is not at all clear, if burton even applies. donald trump under no

circumstances could have his liberty taken away or go to jail, unlike some of the people that have been arrested who participated in the riot. so there is a test under the supreme court first amendment jurisprudence that requires a showing of intent to actually incite violence and the standard for the line between free speech and a criminal action of inciting violence is pretty high. it is a high burden of showing' the presidents intention to do that. again, not clear that applies here because impeachment is about abuse of the office, and the first amendment was passed after the impeachment clause we are talking about, so many scholars believe the first amendment does not even really apply here. there is also a line of authority that if you are acting as a government agent, you don't have the same level of first amendment protection. say i am a government employee.

if i make a statement, i can be fired for that statement. if i make it as a private citizen, my first amendment rights would kick in. by all accounts, he was acting as president and saying listen, come help me stay in office for four more years. i don't think those arguments are technical arguments. these technical, legal arguments, i don't think that the president somehow has no role here. that is not really fair to the thousands of people who showed up at his behest, and over 100 that now arrested, some might actually lose their liberty. he is in a position that he has a tremendous amount of following and support. to say that he is not responsible for anything he said as president and those who support him are just totally on their own, hanging out to dry, that is not a realistic approach

to any president and the framers understood that presidents do have an impact and obligation to act with integrity when they are in office, and that is really what impeachment is about. i don't think that argument is persuasive, frankly, that somehow the president wasn't part of this, that these are all just rogue followers. that is not a logical argument. let alone a legal one. host: our guest has a book out, "how to read the constitution and why." mike, line for republicans, you are on. caller: good morning, pedro. good morning, miss whaley. i will start off by describing what i think of the democrats proceeding with this, and i called and i called in the insane clown posse so that will probably give you the general idea of where i stand and sit on this issue. i think it is absurd in every

possible way. you are making a good argument, you are obviously very norge a bowl -- knowledgeable about the constitution and so on and so forth but i think it is a bridge too far. i think just the fact that the president exhorted the people at the rally to be peaceful. right there, matt tells you he did not exhort anybody other than to march, other than to show their displeasure and their desire for the electors in five or six states to be looked at closely. in a nutshell, basically, he was not doing anything more than what al gore did in 2000 in the state of florida. in wanting to -- except, multiply by five. we have five or six states where there was doubt passed over how the votes were counted, it was not hanging chants, it was mail-in ballots.

as the previous guest said in the first segment and as so many have said, this has a snowballs chance in hell of ever getting to 67 votes. it is simply not going to happen. but the previous guest made an interesting comment that representative raskin, a highly partisan democrat from maryland, he is doing this for the american people and to change public opinion. that is a load of we all know what. if that is what this is all about, then it is purely political. it is not about getting a conviction, which they all know no one will get. host: let me leave you there because you put out a lot already. let our guest respond. guest: i would like to see actual witnesses called by the democrats, to get to some of the questions that the caller is raising. that is, did the people in the

crowd actually hear him calling them to storm the capitol? what other communications were made? maybe we will hear from some people that were with donald trump while he was watching the livestream. what is his understanding of what was happening? what was his intent? a trial is not supposed to be predetermined either way. it is up to the senators in this moment to make that decision, i agree with the caller. this is a political process, in theory. it was set up that way by the framers of the constitution, but that is not a reason to not have it. i think we have to try on for ourselves this concept of precedent. ask yourself, you might be a supporter of donald trump, i am a constitutional scholar, a law professor, and mom, frankly, and i say to myself that this kind of thing that happened is now ok, are you ok with it happening if joe biden doesn't get a

second term? that is, every time we hand off power from one president to another, we are going to see thousands of people climb over the capitol, smash windows, kill people. there was urine and feces and blood throughout the capital for days. the message really is that this is not ok. i want to say one other thing about florida and this process. when it was turned out that al gore lost that process, he peacefully as vice president gaveled in george bush. this time, there were 90 judges. 60 lawsuits, 90 judges who all said there was no evidence of fraud. but donald trump kept that lie going. as a law professor, unlike

politicians, judges are bound by rules. they have to limit what they do based on facts and laws. republican, democrat, whoever they were, they were hired by these judges. they had no choice but to dismiss the lawsuit because there was nothing there. i really think the best thing to do for donald trump would have been to concede defeat factually and not continue this myth that brought these people to washington in a pandemic. they spend money on planes, trains and automobiles. they took time away from their families to perpetuate something that was just false. the american public was duped in that moment and i think there is some accountability for that and i don't want to see that happen again with another president. the message has to be this is not ok going forward, we don't want this behavior. host: rochelle, new york, democrat's line. rosetta, go ahead. caller: i want to say that... i

keep hearing everybody talk about impeachment, impeachment. which, he should be impeached. but you said impeachment is an abuse of office. but it is not criminal. why isn't it criminal? why couldn't the democrats say ok, we are going to impeach him for criminal activity as well? this is prior to the covid business coming out, from the beginning. my whole point is why shouldn't he go to jail? he should be in jail. if you went to jail, that would be like killing two birds with one stone. first of all, he would not think about running for office because he has been a criminal, he has been in jail. host: go ahead. guest: so she makes an excellent point. just to be clear in terms of terminology, he was already impeached. that is the same as someone

filing a civil complaint against you, you get slapped with a lawsuit. but again, impeachment is not about crimes, can't put anybody in jail. it is about basically the process for whether you get fired. we all have this in our employment situation. there are certain lines we can't cross. if we cross the line, we might get fired or we might get some sort of retribution based on acting badly at work. that is for congress to do. what she is talking about is either for the department of justice under joe biden and presumably, merrick garland, the nominee for attorney general, to bring an investigation and actually criminal indictment against donald trump personally, or it could be the district of columbia at the local level deciding there were laws violated and then indict donald trump personally. that is completely separate decision. congress has absolutely nothing to do with that and i think that

comes down to frankly, the political appetite for the biden administration to use its resources and political clout on something like that rather than focusing on covid relief, joblessness, the financial hardships, health care, climate change, things like that. you were the put his ever there and not on thinking about what to do about some of these qualms with donald trump. but it is not off the table. there are investigations happening in new york at the state and local level for the investigation. i don't think della trump is out of the woods from the criminal standpoint but that has absolutely nothing to do with impeachment. firing decision for basically a job badly done. host: brent, jacksonville, florida, independent line. caller: yes. this is the second time that

democrats have impeached president trump. the first time he was impeached for the ukraine business. that is what democrats always do. project their sins onto the republicans. since biden was corrupt with the ukrainian through burisma. now after a whole summer of democrats burning and looting a whole country over the guise of bls, a marxist group -- host: when it comes to the

second impeachment, what would you like our second guest to address? caller: what should happen is the trump lawyers should put the senate on trial. why was there no security if they were warned by the new york fbi office? the bombs were set the night before. the first breach of the capital is while he was still speaking. they knew there was chatter online that people were going to do it. the conservatives don't have a history of rioting and breaking buildings. conservatives respect police, respect our country. host: ok, we will let our guests respond to that. guest: in terms of fighting in ukraine, there are facts on the record publicly supporting the idea that joe biden was somehow involved in some corruption and maybe that is the case, but it

has not been verified in any way. i think it is false, we don't have that. the question is not asking that it be undertaken. donald trump asked that there be an investigation opened into joe biden regardless of how it came up. i think the idea that he was trying to influence the election, that is problematic. just for clarification, with respect to what happened with the black lives matter protests and on january 6, it is really important for people to keep in mind what was happening on january 6, which was the handoff of power. the united states congress was sitting in the capitol and if they had come a couple minutes earlier, we would have seen members of the united states congress actually hurt or killed. that is a different situation than defacing private property, which i don't condone, but in terms of the constitution and legitimacy of our democracy going forward, january 6 is much

more serious. but i want to say i could not agree more with the caller that there needs to be investigation into the spectacular meltdown of intelligence and law enforcement on january 6. i live a few miles from the capital and have lived there for many years, i was sitting there watching with my mouth hanging open, where is the law enforcement? capitol police do answer to the united states congress, there was also local police who seemed to be sort of mia. frankly, the president had authority through multiple federal agencies, law enforcement agencies, that should have been there. there's also reports that members of the u.s. congress were calling larry hogan, the maryland governor, calling the virginia governor, asking for reinforcements, national guard reinforcements, and the department of defense that answers the donald trump denied larry hogan that support to help

the united states congress. that is absolutely critical. >> you can find all of our "washington journal" segments on c-span.org. sec. psaki: just a couple of things for you at the top. the president and his administration are continuing to engage closely with leaders on capitol hill about the need to act quickly on the american rescue plan so we can finish the job of getting to thousand dollar checks out to americans, more vaccines in the arms of americans, economic relief to families facing eviction or food insecurity and help reopen schools safely. we are encouraged that both speaker pelosi and majority leader schumer are in full agreement about the need to move swiftly. the committee markups we will see throughout