[♪] mark: hello, america, i'm mark levin, this is "life, liberty & levin." professor randy barnett, how are you? >> here in the bunker. mark: we are good friends. we have been for a while. you are professor of legal theory at the georgetown law school. i think we need to do a postmortem. we need top do a wrap-up of what

this nation was dragged through, impeachment and an impeachment trial. i want to break this down in logical steps. we hear people saying we are going to impeach again and we are going to keep digging. the impeachment process that took place in the house of representatives, do you feel it met the standards the framers had in mind? >> absolutely not. due process is a fundamental process. the impeachment process in the house lacked all due process. the result of that process gave no one any confidence they uncovered the truth, and given the president his opportunity to give his side of the story in that phase of the trial, that phase of the proceeding. as a result it was strictly a

partisan consider size. >> when we talk about due process, we are not talking about tbhapts bill of rights -- we are not talking about the bill of rights. we are talking about a process that allows the facts to come out and the accused to defend himself or herself. >> due process says there mist be a reliable procedure that establishes somebody committed the offense for which they are charged. nobody can be deprived of life, liberty or property except bid a valid law. just because the legislature tells you something, it doesn't make it a vald -- doesn't make a valid law. those are the two aspects.

if the fundamental principle that precedes the 14th and 15th amendment, they make reference to a longstanding preexisting principle. mark: that's crucial as a bulwark against tyranny. >> any governmental power can be abused. the impeachment power is another power that can be abused. mark: was it? >> i believe it was because it was being used for partisan ends. and i would say electoral ends, the end of influencing an upcoming election. everything the president was charged with here is what the house actually did. and you can establish that as it's long been established by all the calls for impeachment for this, for that, from the day

he was inaugurated. that goes to the good faith of the house. mens rea, good faith of the house in exercising a power to bring charges. the question is was that power abused. had think given -- had they given the president the opportunity to participate in all phases. if they had allowed his counsel to participate and call witnesses and cross-examine witnesses. you know as a lawyer, cross-examination is one of the hallmarks of freedom. the right to call your own witnesses. those were not done. the president was not accorded any opportunity to participate until the very last minute when it had gone from the

intelligence committee to the jew dish airy committee where no work was done and he was invited to sit in. but that's not due process. and that's not a way to reach a conclusion to satisfy somebody who is already convinced the president is guilty of an impeachable offense. mark: the president wanted to defend the office of the executive branch against certain subpoenas for witnesses like people who advise him on a confidential basis, or certain documents, they would add that to an impeachable offense -- adam schiff said that's what they are doing. doesn't that do grave damage? we need this balance. isn't it likely the legislature can be tyrannical? >> absolutely. that's one of the reasons we

have judicial review to make sure the legislature has not excited its proper powers as it did when it passed the affordable care act. the mandate was unconstitutional because it exceeded the legislature's power. the due process to go into court has an individual judge decide who is right, the individual citizen or congress. nobody is above the law, congress is not above the law. with respect to what an impeachable offense, that's not who checks the house. the institution that's checks the house is the senate. that's where you get review. it's a senate review of whether what has happened in the house meets the standard of due process. that's what persuade a majority

of the senators to vote the way they disregardless of whether or -- regardless of whether the president had misbehaved. clearly the house had misbehaved and to create a precedence where a party can continue to act improperly and abuse their impeachment powers. mark: they had a case of a president misbehaving, they didn't act like it was a strong case. they didn't want to put it through the test with due processor allow his lawyers to be present. they didn't want him to present his own witnesses. >> that's a key point. if they are they were so confident in the merit of their case, they should not have been afraid of due process. they only felt they would survive and get to the finish

line which meant impeachment by denying the white house, denying the president of the united states his opportunity to participate in that phase of the impeachment process. it was a tell. mark: andrew johnson was a pretty awful guy, but he shouldn't have been impeached. lynn coin -- lincoln is assassi, the war is over. he was a democrat from the south, but supportive of the union. >> he was called a war democrat. mark: but the house kinds of set him up. they passed a law that said you can't fire your own cabinet, you have to get our permission. and he vetoed it. then he fired his secretary of

war who he inherited from lincoln. and for that reason among others they impeached him. there were 11 charges. they lost on three and the other 8 they dropped. was the house trying to set up the president with all these subpoenas? >> i think they were. i think it was a setup. getting back to your earlier point. all presidents have misbehaved. it's hard to think of a president who hasn't misbehaved in a serious way. think of fdr and what he did during the second world war with respect to the japanese-americans or others things he did. refusing to take jews who were trying to flee europe. mark: presidents used the fbi and the ira.

rd and the irs. >> but they had not been charged with impeachable offenses. the remedy for all that presidential misbehavior has been exposure and the political process. impeachment is reserved for those situations in which the removal of the president is imperative. it's imperative. so far in our history that hasn't proven to actually been the case. it has never carried the day except for nixon where we didn't actually put it to the test. it never carried the day that the president needed to be removed. this is consistent with our history. presidential misconduct that is addressed politically and not addressed by removal. removal has the effect of in some sense disenfranchising the voters who put that president in

office. that's the reason why partisan impeachments are so significant. if the motive force for removing the president are all the people who voted against him, then the people who voted for him won't '. impeachment has been politicized to the point where people don't care about impeachment. they should. it should be a weapon that you can threaten presidents with and get them to conform because it's such a heavy, serious matter. but if you are going to diminish its importance, then a president will go, hey, impeach me, what do i care? all of the checks and balances, if we have them built in, when they get in the way of a progressive political agenda,

the senate needs to go, the impeachment power will be used in such a way, every single structural barrier is going to be politicized to the point where all checks on power are going to be under mined. mark: what is this force? why is this party trying to tear down the barriers the constitution sets to protect liberty. ladies and gentlemen, you can join us on levintv most weeknights. go to blazetv/mark. or 844-levintv. before nexium 24hr mark could only imagine... a peaceful night sleep without frequent heartburn waking him up. now that dream is a reality. nexium 24hr stops acid before it starts for all-day,

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mark: professor randy barnett one said something important at the end of the first segment. you started to pinpoint areas that are under attack, constitutional fire walls. stralsized government and prevent mobocracy at the same time. what's the difference between a

republic and a democracy. >> the idea of pure majority rule was a regionally concept that motivated what was called republicanism before the framing of our constitution. the state at that point were basically majority governments. and the constitution was developed as a way of solving a problem with up cannism. -- are u republickism. '. '. they said the ills we face are due to an excels of majority rule. it doesn't mean town halls or referenda. if you go to the dictionary it

will say representative democracy. but that's not right. majority rule is not the solution to the problem of legitimacy. it's the problem form our constitution and the checks on power. the meaning of the word republicanism changed. and they put that into action in each state. mark: we have the declaration. if you emphasize democracy, your properties are eroding your free speech rights and property rights. >> madison said have two people

in a room would the third person be secure? he said it wouldn't matter whether it was 3,000 would the 1,000 be secured. republicanism at that point was the protection of individual rights. the next sentence of the declaration says to secure these rights, to secure these preexisting individual rights, governments are institute among men deriving their just powers from the consent of the governed. the powers necessary to secure the rights retained by the people. that's what the constitution was set up to do. there are struck stewart constraints that get d there are structural constraints that get in the way. the progressives think they have the majority so they must be

stripped away. i don't think progressives today are into democracy at all. mark: they are into democracy when they win. but when they win, they are into the administrative state. they will take it either way. >> we both know people who work in government who are political appointees who have been put into the government by a politically elected president. and what do they find? they find resistance. not the hashtag resistance. the government is run by them, the government is run for them. they go in resistance mode if the other party comes in. if their party comes in everybody is happy and they play well together. if the people say we have had enough of that and we want something different, they won't let you have something different.

mark: separation of powers. the battle taking place, subpoenas, we are going to impeach you, is a separation of powers battle. why is that so important? >> separation of powers was devised -- it was locke who understood there were separation in functions. but montiskue was influential with the separation of powers. and separate people. that would be a way of checking power. government doesn't get to act on the individual, us, the people, we are the bosses, they don't get to act on us unless all three branches concur.

if any one of those branches says no, by and large it doesn't happen. if congress says no it doesn't get to the president. if the president says no it only gets further if congress has a super majority. that protects the minority. only if those two concur do courts get a say whether it's within the constitutional powers of the government. that's a three-part check. we call that redundancy like on an airplane. if one engine fails, you have redundancy. a lot of the redundancy in our constitution has been eliminated one after the other. mark: this an increasingly important battle.

if the president complied with every one of those subpoenas, if he had given them the chief of staff, every document, every bank note, he would have destroyed the office of the presidency. do you agree with me? >> i do. it's not the president. it's the presidency. we have had presidents who ceded this power in the interest of getting along with the other branches. and in the long run it has not been a good thing. i think he would have not been holding up his end of the bargain as president. i think he listened to his advisors who understood that and he followed their advice. 1 in 5 people you meet wear dentures. yeah. that many! but right now, is not the time to talk about it. so when you're ready, search 'my denture care'. poligrip and polident. fixed. fresh. and just between us.

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[♪] reporter: live from "america's news headquarters." i'm aishah hasnie. we are learning more about the attack that left two american soldiers dead and six wound. the attack was carried out by an individual in an afghan uniform armed with a machine gun. it happened during a meeting. no group claimed responsibility but officials are not ruling out isis. the two soldiers are identified

from arizona and new mexico. two officers were shot in new york city. the gunman has a history of violent attacks. mark: professor randy barnett. do you have to have witnesses in the senate? this became a big issue, even more than the articles themselves at one point. >> there were witnesses in the senate. the entire house record, including the video testimony was made part of the senate record. initially it wasn't. then mcconnell said yeah, yeah yeah it will be. it was a good move. all of that evidence was before the senate. there was a record.

there were witnesses. the debate was over additional witnesses. more witnesses. witnesses that the house didn't call. witnesses they didn't subpoena. that's what the debate was over. if it comes to due process, the problem with the senate hearing, the real defect in the senate proceedings is that the president did not have the opportunity to cross-examine the witnesses that the senate considered. all those video clips they listened to, there was no cross-examination by the white house. there was some by house republicans, but not by the white house which is what the president was entitled to. had this moved forward with additional hearings and additional witnesses, the president would have been entitled under due process to cross-examine all the witnesses who already testified in the house. they could have recalled any one

of those witnesses for cross-examination. mark: which would have dragged this thing on right into the election. you are right. they never had a whack the these other witnesses. even the witness testimony that was used was mostly from the president's perspective clearly unchallenged witness testimony. >> it was challenged by house republicans. but not by the president. many of the clips that the president's lawyers showed the senate were the clips resulting from house republican cross-examination. so house republicans did what they could. i commend them for that. but it's not the same. president's counsel is going to be privy to information that would animate their defense in the way congressional republicans don't know about. you saw that in the way the president's counsel presented their case in the senate.

it was arguments we hadn't necessarily heard before. that was the first time the country heard what the president's defense was to these charges. mark: only the president can defend the presidency from that perspective. as good as the republicans are or were, what he hadn't heard from him through his counsel. that's an interesting take and an important one. all the new witnesses when in fact the witnesses that were used had never been challenged by the president's counsel. >> at the time of the founding, there were no video testimony. the only way the senate would hear the evidence presented in the house was to hear it for themselves. telehas made that that -- *

technology has made that unnecessary. mark: the extent to which everybody quotes hamilton because of his writings in the federalist papers. one of the things they point out about hamilton, the importance of the impeachment process. and i thought about hamilton. hamilton and jefferson were at loggerheads. he was the treasury secretary. jefferson was the secretary of state. but hamilton thought he was the secretary of state. he went around washington to give information to the british. jefferson was sympathetic to the french. jefferson wound up resigning because hamilton was interfering with foreign policy. and hamilton was giving confidential information, discussions he had with jefferson to the british.

it shows how little history they actually know. they are waving around the federalist maybes quoting hamilton, when hamilton shows interference with foreign governments in our domestic affairs. does it concern you as a constitutional expert when you listen to some of these people go on about the constitution and history that they don't know enough about what they are talking about? >> yeah. but you have to say that i'm reassured when i hear both sides arguing about what the fowmedders thought about -- what the founders thought about this or that, situations like this is the homage living constitutionalists pay to the constitution. i think that there wasn't stupidity manifested in either

body. i think both bodies -- there is political operations, political arguments. but i like the idea, i personally like the idea that this entire exercise turned into an exercise about what the founding generation thought it was. where was constitutionalism? why didn't the democrats get up and say we are not bound by what the founders thought about this. we are bound by what we think today is an impeachable offense. mark: they didn't have to, they were doing it. >> but that's okay. but they are arguing in the correct terms. then what happens. you negate that argument by an historical counter point. man: sneezes

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mark: during the force of these debates and the legal an list and the guests, the electoral college comes up. i'm not sure why, but it does. they hate the electoral college. when they lose on the left, they don't like the electoral college. after the vote in california they say we won the election but for the electoral college. why do we have the electoral college? >> the original purpose isn't all that important now. the original purpose was that there is a problem with communication technology and there was a serious question whether the whole country would be aware who the good leaders were and who were not the good leaders. so you delegate this to specially selected representatives who will

presumably know more and decide who to vote for. that's the main original purpose of it. we don't need it for that anymore. but wait turned into, a way of insuring that all parts of the country get heard, even the more sparsely populated part which may have different policy views and different values. we are a republic, not a democracy. mark, i thought we settled this. we need to care about the minority as well as the majority and the electoral college protects that. and it protects against voter fraud. i group in cook county, illinois. i was a prosecutor and a state's attorney. i was used to chicago politics and corruption. illinois politics and corruption which they say tipped the balance towards kennedy.

if you have a national vote you can steal votes from anywhere and run the vote count up. the thing about localities. the electoral college creates a fire wall. you can steal as many votes as you want from chicago and it won't give illinois more electoral votes. it's a fantastic fire wall against voter fraud. and it allows us to have outcomes of elections known within a few days. otherwise it would be like the iowa caucuses where you might never know hot winner of an election was because they will just keep counting and recounting. mark: the idea that you can't have the cities control a whole country. we have farmers. we can't eat without farmers. if they are not represented just

because they are more rural states, more rural areas, then their interests aren't represented in congress either. or different kinds of industries, commercial fishing industries. you can't have the top then metropolitan areas in the country running the country, because you cease to be a country and you see the diversity taking place. >> you hear the coastal elites making public of the rubes in the middle. that tells you we are not all the same. if they had the same values and the same sensibilities as the coastal elites, the coastal elites would not be making fun of them. a republican form of government is needed to protect we the people each an every one of us. not a majority of people, and not a privileged minority. but we the people, each and

every one of us. each one of those parts of our structural constitution is how the rights of each and every one of us are protected. >> doesn't it also help keep the peace? everybody has a say. it's not exactly the same way, it may be weight differently. but everyone participates. if you want to be president of the united states you have to go to iowa. you don't just camp out in five cities. so people don't feel completely left out of the process. >> there is a serious problem of alienation if people start to feel like they are under the heels of the others. and society can break down when people are arguing against civility. civility can and will break down. mark: this movement to end the electoral college. >> the national popular vote.

is that constitutional? >> it -- it shouldn't be that close a question. the constitution requires that any compact between the states be' in the congress. and it does not include congressional consent. so that is a problem with it. mark: why would people want to change the constitution without amending it or congressional approval. ladies and gentlemen, don't forget, you can join me most weeknights on levintv. go to blazetv/mark or give us a call at 844-levintv. antacids here...

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mark: i'm going the hit what is an arcane point. but this is a brilliant audience that enjoys what we are going to discuss. the bill of rights and the 9th amendment which is almost never discussed. i have argued the 9th

amendment is a link back to the principles in the declaration of the independence. >> it says certain rights shall not be construed to deny or disparage others retained by the people. if you came down from mars you would say that's an important sentence. what is rights retained by the people? rights retained by the people are rights the people had before government is formed that's retained. those are natural rights. the rights the declaration refers to inalienable rights. you retain those rights. the fact that you put some rights in the constitution and trial by jury which was not a natural right, but which madison said was as important to secure liberty as any natural right. the fact you put some in there doesn't mean you don't have

others. one of the dangers the federalist point out was if you enumerate rights, people will say that's the only rights you have. so madison said i have a solution. and it was theth -- it was the 9th amendment. by enumerating some rights, it turns out that's the only rights we have and the 9th amendment has been blown it of the water by the courts. mark: why? >> it's too radical doctrine and it stood in the way of the overarching federal power. at one point in our history progressives decided that's what we need and had to get rid of the horse and buggy constitution with limitations and move into a brave new world with robust

power like they had in europe. mark: in the end, can progressivism coexist with constitutionalism? >> a lot of it can at state level. but progressives have never been con the tent. -- have never been content. laboratories of progressivism at the state level. any policy they like has to be implemented at the national level. you can't vote with your feet and go from a state with bad policies and go to another. you have to leave your country. and that's dangerous to liberty. mark: when you hear bernie sanders or a lot of these folks saying we are going to nationalize healthcare, we are going to nationalize student loans.

i don't care about supreme court decisions. is that per mid under the constitution? >> for a variety we can't go into in an interview like this, it is not permitted by the constitution. you are putting aside supreme court decisions and they have taken us astray for a very long time. mark: i want to get to the original intent of the framers of the constitution. they would be appalled at the government having that power? >> they wanted a more powerful government than the articles of confederation gave us. they wanted a balance. they wanted a compromise between an unlimited national power and feeble national power. they thought they truck that balance with the enumerated powers they gave to the federal government, leaving all other powers to the state. the 10th amendment says these

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about the constitution. is that why you wrote it? >> yeah, what the supreme court says about the constitution is not the same as the constitution with my book restoring the constitution is about that. this is about what the sabrina court has said, for better or for worse and often times or worse. we basically identified the 100 supreme court cases that everyone should know and discuss each one of them in very short chapters, something adaptable to the general public, homeschoolers, college students and we have a video that is multimedia for all the - we have 63 videos and when you buy the book you get a scratch off coat on the inside cover that gives you access to the 63 videos that we spent two years making that illustrate all these cases with multimedia. we have oral arguments, links with experts from oral arguments and the justice statements have

them reading their own opinions in their own words and pictures and graphs but this makes constitutional law, not the constitution, so much fun constitutional law come alive. now you understand - you read this book and you will know more than most lawyers who graduate from law school about the constitution. steve: . mark: in more than the house managers in the impeachment trial. one hundred supreme court cases everyone should know. very briefly. was it tough to pick the 100? >> actually not. basically these are the basic cases and the cases that are an 80-90% of all constitutional law courses. mark: a lot of conservatives believe in her religion was him. what is original is on? >> it is a view the meaning of the constitution shall remain the same until it is properly changed by amendments. that is all it is but there's another sentence which says why original is him and that is the constitution is not the law that governs us, mark. the constitution's law governs those who govern us and they should not be able to change the meaning of the law that governs them without going to the unlimited process anymore than you and i can change the laws they made to govern us without

going to the legislate process be to beautifully put. it's been a pleasure. god bless. see you next time on life pretty and live-in. ♪ steve: breaking tonight, this. >> how do you explain the performance in iowa and why should the voters believe that you can when the national election? >> good question. number one, i was - have you ever been to a caucus? no, you haven't been you're a lying dog faced pony shoulder but now you've got to be on us and be honest with you. steve: lying dog faced pony soldier. they say it's a joke and it had something to do with john wayne but it tells you what you need to know about the current state of the democratic party. lots more on that later tonight but good evening and wel