february. i'm jon scott. thank you for spending part of your day with us. we will see you again. >> hello america. this is life, liberty and levin. welcome back, professor randy barnett, how are you sir? >> so good to see you. >> it is a great honor. >> here in the bunker >> in the bunker. >> yeah. >> we're good friends. we have been for a while. you are the proof of legal theory at the georgetown university law school. you're the director of the georgetown center for the constitution. i think we need to do a post mortem. we need to do a wrapup of what this nation was dragged through

the last half year or so, impeachment and an impeachment trial. and i want to break this down in logical steps because we still hear people saying we're going to impeach again and maybe again after that and we're going to keep digging and looking and so forth and so on. the impeachment process that took place in the house of representatives, do you feel it met the standards that the framers had in mind? >> absolutely not. due process is a basic fundamental concept, and the impeachment process in the house lacked all due process, which means that the result of that investigation, the result of that process gave no one any confidence that they had actually uncovered the truth and given the president his opportunity to give his side of the story in that phase of the trial. -- of that phase of the proceeding. as a result, it was a strictly partisan exercise.

>> when we talk about due process, we're not talking about what's in the bill of rights because we know this isn't a criminal case and so forth, but we're talking about tradition fally in a civilized -- traditionally in a civilized western society is a process that allows the facts to come out and the accused to defend him or herself; correct? >> right, the due process of law has two components. it is the due process of law. the due process part says there must be a reliable procedure that actually establishes that somebody actually committed the offense for which they are charged. and the of law part says it must be -- nobody can be deprived of life, liberty or property without -- except by a valid law. it has to be a valid law. just because the legislature tells you something it doesn't make it a valid law. it is both guilt and innocence must be assessed and a legal standard, an objective legal standard that you could have been on notice of in advance, that also must have been violated. those are the two aspects of the due process of law. it is a general fundamental

principle that precedes the 5th amendment and precedes the 14th amendment. those amendments make reference to a longstanding preexisting principle. >> and a longstanding preexisting principle is crucial as -- [inaudible]. >> tyranny and abuse of power. any governmental power can be abused. it is ironic. they charged the president with abuse of power. the impeachment power is another power that can be abused >> was it? >> i believe it was. it was abused because it was being used for partisan ends, strictly partisan ends, and i would say electoral ends. i would say the end of influencing an up coming election. everything that the president was charged with here is what the house actually did, in formulating impeachment proceeding, and you can establish that as it's long been established and as your viewers know, by all the calls for impeachment for this, for that, for the other thing, from the day he was inaugurated, there's been calls for impeachment.

well, that goes to the good faith of the house, good faith of the house, in exercising a pow their is unquestionably -- a power that is unquestionably their power, a power to bring charges. the question is, was that power abused? >> and you think it was? >> i do. i think had they given the president the opportunity to participate in all phases of the hearings, not the secret hearings, the hearings that were done in the secure room located in the house, if they had allowed his counsel to participate in that and to call witnesses, both to call witnesses and to cross-examine witnesses. as you know, mark, as a lawyer, cross-examination is one of the hallmarks of freedom, the ability to call your own witness, that's the right of confronting your accusers and also 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 where all the work was being done to the judiciary committee where no

work was done, and then he was invited to sit in at that point, his lawyers, but that is not due process. and that is not a way you reach a conclusion that's going to satisfy someone who is not already convinced that the president is guilty of an impeachable offense. >> do you think this is why they put together these very broad impeachment charges? it appears the president wanted to defend the office of the president or the executive branch against certain subpoenas for witnesses, like the people who advise him on a confidential basis, there are certain documents, they would just add that to an impeachable offense list -- i mean adam schiff basically said that's what they were doing. doesn't that do grave damage? we need this balance. isn't it possible as you alluded to that the legislature could be tyrann tyranny? >> absolutely. the legislature can abuse power. that's one of the reasons we have judicial review is to

ensure that the legislature hasn't exceeded its proper powers as it did for example when it passed the affordable care act pursuant to its commerce clause power. i was one of the persons that formulated the argument for why the individual mandate was unconstitutional because it exceeded congress's power. and the due process of law gives you the opportunity to go into court and have an independent judge decide whether -- who is right, the individual citizen or congress? congress is not above the law. nobody is above the law. in the case of impeachment, though, it is not something that the courts would get involved with other than to evaluate the merits of subpoenas, let's say, but with respect to what's an impeachable offense, that's not who checks the house. the institution that checks the house is the senate. that's where you get review. it's a senate review instead of judicial review of what has happened in the house meets the standard of due process, and that is exactly what i think persuaded a majority of the

senators to vote the way they did, regardless of whether or not the president had misbehaved. clearly the house had misbehaved, and to create an incentive or a future precedent in which the house, no matter which party controls it, can continue to act politically and abuse their impeachment power is something the senate was charged with stopping, and i think that's what they did. >> if they had a case with the president misbehaving, didn't act like it was a terribly strong case, for the reasons you say, they didn't want to put it through the test, they didn't want to allow due process, they didn't want allow him to challenge the evidence or allow his lawyers to be present at critical times or allow him to present his own witnesses >> that's a very key point. it's a very key point. if they were so confident in the merit of their case, they should not have been afraid of due process. the fact that they ran from the adversary system in the house indicates that they only felt they would survive, they would get to the finish line, which

meant impeachment to satisfy a political constituency 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, as we say. >> you know, the andrew johnson case, he was a pretty awful guy. >> he was quite awful. >> but he shouldn't have been impeached, at least, i don't think. in this tenure of office, they passed purposely the so called radical republicans, lincoln's assassinated, the civil war is over, you have reconstruction period. there wasn't all that much in the reconstruction. a democrat from the south, but he was supportive of the union versus the confederacy. >> he was what was called a war democrat. >> but the house kind of set him up and so did the senate. that is, they passed a law and said you can't fire your own cabinet, you have to get our permission, which is absurd, separation of power -- but that was the position. he vetoed it, and then he fired his secretary of war, who he

inherited from lincoln. and for that reason, among other things, impeached him. there were 11 charges brought. they lost on three, and then they took a reassessment and the other eight they dropped. were the house democrats trying to set up the president with all these subpoenas? >> i think they were. i think it was a set-up. look, getting back to your earlier point, all presidents have misbehaved. i can't -- it's hard to think of a president who hasn't misbehaved and misbehaved in a serious way. think of fdr and what he did during the second world war with respect to the japanese americans or other things that he did, refusing to take jews who were trying to flee europe. there's all kinds of misbehavior. >> -- irs -- presidents have used the fbi, cia, put journalists in prison, shut down newspapers. lincoln did things he didn't have the authority to do.

you can go on and on. >> you can go on and on, but they haven't been charged with impeachable offenses. the remedy for all of 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. and 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 to it the test. but other than nixon, it has never carried the day that the president needed to be removed. this is just consistent with our history of presidential misconduct that is addressed politically and not addressed by removal because removal has the effect of in some sense disinfranchising the voters who have put that president in office.

that's the reason why partisan impeachments are so significant because if the mode of force for removing the president are the all people who voted against him, then the people who voted for him are not going to credit that. it is going to undermine the legitimacy of impeachment, and i'm afraid, mark, that that is really one of the big down sides, one of the big costs of this is another check on governmental power, impeachment has now 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're going -- if you're going to diminish its importance to this point, then a president is going to go hey, impeachment, go ahead, what do i care? well, that's not a positive development, and all of the checks and balances that we have built in, when they get in the way of a progressive political agenda, they need to go. senate needs to go. the electoral college needs to go.

the impeachment power is going to be used in such a way that it will also be gone? every single structural barrier is going to be politicized to the point where all checks on power are actually going to be undermined. >> i want to pursue this with you. what is this force? and why is this party -- i mean in the aggregate, why is this party trying to tear down the barriers that the constitution sets to protect liberty? i want to ask you about that when we come back. ladies and gentlemen, don't forget you can join us on levin tv most weeknights. go to blaze tv.com/mark to sign up or give us a call at 844-levin-tv. we will be right back. we're oscar mayer deli fresh,

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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. i'm your mother in law. and i like to question your every move. like this left turn. it's the next one. you always drive this slow? how did you make someone i love? that must be why you're always so late. i do not speed. and that's saving me cash with drivewise. my son, he did say that you were the safe option.

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jon: live from america's news headquarters, i'm jon scott. president trump remains unapologetic after a public rebuke by his own attorney general to not interfere with the department of justice. the president saying he has the quote legal right to intervene in any criminal case. this after barr taps an outside prosecutor to review the case of former national security advisor michael flynn and after the doj's decision to push for a lesser sentence in the case of roger stone. democrats are furious and several are calling on the attorney general to resign. also michael avenatti found guilty in a case involving nike

on friday a jury decided the celebrity lawyer tried to extort the sportswear giant for millions and attempted to defraud a youth basketball coach he represented. avenatti now faces up to 42 years in prison. i'm jon scott. now back to "life, liberty and levin". 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. about making choices.

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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 [♪] looking to repair dry, damaged hair without weighing it down? try pantene daily moisture renewal conditioner.

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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

are the powers of the national government, all the rest of the powers are give to the states. but that become qualified by the 13, 14, and 15th amendments. slavery was a state law and there needed to be federal constraints on state power. what we lack is state powers and federal power. at outback, steak & lobster is back. oh no! it's gone! phew! it's back, with lobster mac & cheese. it's gone again! it's back, with shrimp now! steak & lobster starting at only $16.99. hurry in before these three are gone again. outback steakhouse.

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♪ mark: [♪] mark: you have written a remarkableit book, an accessible book, introduction to constitutional law, 100 supreme court cases everyone should know. we talked about it on our radio show. if people want to get into the constitution and what the supreme court says about the constitution, is that why you

wrote>> it? myme book restoring the law and the constitution. this is what the supreme court has said for better and worse, and oftentimes for worse. we discuss each case in short chapters. something that's adoptable to the general public, home schoolers. and when you buy the book you get a scratchoff code on the inside cover that gives you access to videos that illustrate these cases. we have excerpts from oral argument, audio, the justices do their own hand-down opinions. this makes constitutional law, not the constitution, but constitutional law come alive. you read this book and you will

know, more than what most lawys who graduate from law school know about the constitution. mark: introduction to the constitution, 100 cases everyone should know. >> these are the cases in 80-90% of all constitutional law cases. mark: what is originalism. >> the meaning of the constitution should remain the same until it's properly changed by amendment. there is another sentence that says why originalism. the constitution is not the law that governs us, it's the law that governs those who govern us. >> beautifully put.

it's been a pleasure. see you next time on "life, liberty & levin." [♪] jesse: welcome to. "watters' world," i'm jesse watters. democrats couldn't impeach trump so now they are trying to impeach bill barr, his attorney general. a week after trump was acquitted the left has a huge new scandal that's similar to the last so-called scandal. it was a set-up and nothing illegal happened. '. roger stone's house is raided at the crack of dawn. cnn gets tipped