Speaker 1: Pushkin No I hear before we get into this week's episode,
Speaker 1: I wanted to tell you about something new from the
Speaker 1: Deep Background team. Our Deep Bench miniseries explored how the
Speaker 1: Federalist Society became the most powerful legal organization in the country.
Speaker 1: My producer, Lydia Jeancott and I have now authored an
Speaker 1: audiobook about the rise of the Federalist Society and the
Speaker 1: forces that could fracture it. Takeover How a Conservative Student
Speaker 1: Club Captured the Supreme Court includes additional interviews and a
Speaker 1: new preface and afterward. The book will be published on
Speaker 1: February twenty third, but until then Deep Background listeners can
Speaker 1: purchase Takeover only at Pushkin dot fm slash Takeover. Take
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Speaker 1: Pushkin Industries. This is Deep Background, the show where we
Speaker 1: explore the stories behind the stories in the news. I'm
Speaker 1: Noah Feldman. An impeachment trial in the Senate is supposed
Speaker 1: to be one of the most rare revelatory events in
Speaker 1: American politics, but we've had two in the last year alone.
Speaker 1: What are the takeaways of this second Senate impeachment trial,
Speaker 1: and indeed of the whole phenomenon of impeachment, one that
Speaker 1: is speeding up with remarkable velocity. Here to discuss impeachment
Speaker 1: with me the details of this trial, the comparison to
Speaker 1: the first one, and the long historical trajectory of impeachment
Speaker 1: from the founding into the future is Jacob Weisberg. Listeners
Speaker 1: will know Jacob as the CEO and co founder of
Speaker 1: Pushkin Industries, the company that produces this show. What you
Speaker 1: might not know is that the way I ended up
Speaker 1: having a podcast of any kind at all, not to
Speaker 1: mention one on Pushkin, goes back to conversations that Jacob
Speaker 1: and I began to have in the early days of
Speaker 1: the Trump presidency. Back as early as the fall of
Speaker 1: twenty seventeen, Jacob and I co authored an article in
Speaker 1: The New York Review of Books which laid out the
Speaker 1: case for impeachment against Trump based on the conduct that
Speaker 1: he had already committed at that point, and based on
Speaker 1: the underlying constitutional principles of what count as high crimes
Speaker 1: and misdemeanors under the Constitution. That article was the beginning
Speaker 1: for me of delving very deeply into the question of
Speaker 1: the constitutional status of impeachment. That and subsequent research and
Speaker 1: writing were the reasons that I ended up getting called
Speaker 1: to testify before the House in the first impeachment process
Speaker 1: against Donald Trump. Jacob, Welcome back to Deep Background, Jacob.
Speaker 1: Let me ask you some specific concrete questions about what
Speaker 1: you expected in this second impeachment trial and what happened.
Speaker 1: First of all, did you have any different expectations the
Speaker 1: second time from the first time, or did you figure
Speaker 1: the fix was in the second time just as it
Speaker 1: had been the first time. I think people overestimate the inevitability.
Speaker 1: If you told me at the beginning there will be
Speaker 1: seven Senate Republicans who will make an independent decision and
Speaker 1: vote for impeachment, I would have been surprised that there
Speaker 1: would be that many. But I don't think that was
Speaker 1: completely inevitable. I think a slightly different dynamic, including possibly
Speaker 1: more evidence about Trump's knowledge on January six, could have
Speaker 1: provoked a different outcome. I don't know what do you think.
Speaker 1: Do you think this was one hundred percent foreground conclusion.
Speaker 1: I sort of think that it was. I mean, for me,
Speaker 1: the alternative scenario is more like what if a congressman
Speaker 1: had been killed or congresswoman had been killed on January six,
Speaker 1: You know, would that have changed the result? Had it
Speaker 1: been a Democratic congressman or congresswoman, would that have brought
Speaker 1: to a different result? If it had been a Republican
Speaker 1: would have been a different result. What if Mike Pence
Speaker 1: had been badly beaten by the crowd but managed somehow
Speaker 1: to escape. Would that have produced a different result? Based
Speaker 1: on the fact that we saw going in, I didn't
Speaker 1: see a way that McConnell could take a different stance
Speaker 1: than he did, mostly because you know, as we all,
Speaker 1: lest we be confused about the fact that McConnell despises Trump,
Speaker 1: which is clear from his speech about Trump, McConnell is
Speaker 1: also a facilitated Trump in a serious way for the
Speaker 1: last four years. So you know that the accommodationism, to me,
Speaker 1: indicated that there was no real way for McConnell to
Speaker 1: realign where he would where he would choose to to realign.
Speaker 1: So I was not surprised by the outcome. I do
Speaker 1: think it could have been different if the violence had
Speaker 1: come out in some different way. By the way, similarly,
Speaker 1: if the Capitol Police or the Washington DC Police or
Speaker 1: some combination had defended the capital in such a way
Speaker 1: that no one had breached the perimeter of the capital
Speaker 1: even if they had tried. I don't think Trump would
Speaker 1: have been impeached. Even if the crowd had made the
Speaker 1: state he had made the identical speech, and the crowd
Speaker 1: had made the same efforts but hadn't been held off,
Speaker 1: I don't think we would have seen an impeachment. I
Speaker 1: think the impeachment happened because of the penetration of the Capitol.
Speaker 1: And that actually leads me to ask you a question, Jacob,
Speaker 1: which is do you think the case was stronger in
Speaker 1: the second impeachment than in the first impeachment. I mean,
Speaker 1: they got more Republicans in both in the House and
Speaker 1: the Senate than the first time. Do you think that's
Speaker 1: because the case was stronger or do you think it
Speaker 1: was because Trump was less powerful because he was out
Speaker 1: of office and had lost the election. It's funny I
Speaker 1: think that both impeachments it could have been one impeachment
Speaker 1: because both of them were about the same thing. They
Speaker 1: were about trying to steal an election. The first one
Speaker 1: was about trying to cheat before the election, and the
Speaker 1: second one was about trying to reverse the results. Of
Speaker 1: the election. They reflected Trump's democratic dishonesty and his politically
Speaker 1: corrupt ambitions, and in that sense they were utterly valid.
Speaker 1: I mean, if there is anything that impeachment is about,
Speaker 1: it's trying to deal in an election. I mean, it's
Speaker 1: hard to imagine something that a crime that it's more
Speaker 1: political in nature. Something to me that more explicitly meets
Speaker 1: the constitutional understanding of a high crime. Look, I totally
Speaker 1: agree with what you said. I think they were about
Speaker 1: the same thing. I have to say, I don't think
Speaker 1: that that was made clear by the managers in the
Speaker 1: second impeachment at all. I think the first impeachment focused
Speaker 1: on something that Trump had done but had failed to do,
Speaker 1: and the weakness of the case there was that the
Speaker 1: allegation was that he tried to do something, namely, get
Speaker 1: the president of Ukraine to investigate Joe Biden and Hunter Biden,
Speaker 1: and he had failed. So his strongest defense in the
Speaker 1: real world was something like, oh, come on, nothing happened.
Speaker 1: And the second time it was something that Trump had
Speaker 1: done in the sense that he gave the speech and
Speaker 1: then the capital was breached, but the problem was that
Speaker 1: he didn't do it, and so therefore he had to
Speaker 1: be accused of incitement, which is by its just structural nature.
Speaker 1: Incitement is the idea that I suggested that you do something,
Speaker 1: and then you did it. So there's always some intervening cause,
Speaker 1: namely what you've done in an incitement trial, and that
Speaker 1: enabled Trump to back away and say hey, or through
Speaker 1: his lawyers, I didn't actually do this, So in each
Speaker 1: case he had some defense available to him. So I
Speaker 1: agree they were about the same thing, but I don't
Speaker 1: think they played out that way in the mind of
Speaker 1: the public. I mean, I'm thinking with this impeachment, particularly
Speaker 1: about the context of his call to the Georgia Secretary
Speaker 1: of State and saying find me eleven thousand votes. I mean,
Speaker 1: there is a context beginning on election night of Trump
Speaker 1: rejecting the results and trying to find a way to
Speaker 1: reverse them, and in that context, the January sixth speech
Speaker 1: sounds totally different. I agree with you. If there hadn't
Speaker 1: been violence the capital, you know, if they had enbreached
Speaker 1: the Capitol, it would have just read like another incendiary
Speaker 1: Trump speech and it would have been dismissable. But it
Speaker 1: was in context the last effort that began on election
Speaker 1: day to find a way to reverse the result. I
Speaker 1: actually really wish that the articles of impeachment had not
Speaker 1: been for incitement to violence, but had been articles of
Speaker 1: impeachment specifically saying, you know, Donald J. Trump tried to
Speaker 1: subvert democracy itself, first by denying the legitimacy of the
Speaker 1: election in the run up, then by falsely claiming after
Speaker 1: the fact that the election results were rigged when that
Speaker 1: was not true and it was clearly false, and then
Speaker 1: ultimately by you know, call it a second or a
Speaker 1: third article of impeachment, by inciting the violence. My guess
Speaker 1: about why the Democrats didn't do that, and it's just
Speaker 1: a guess, is that they were worried that if they
Speaker 1: made the denial of the legitimacy of the elections into
Speaker 1: an impeachable offense, they wouldn't get any Republican votes, because
Speaker 1: so many Republicans were publicly on the record as saying
Speaker 1: that the election results were rigged, and on the contrary,
Speaker 1: no one in Congress was willing to say openly that
Speaker 1: it was a good thing to invade the capital. And
Speaker 1: so I think they guess, this is just you know,
Speaker 1: reconstructing that they would do better in terms of the
Speaker 1: votes if they just restricted the charge to incitement and
Speaker 1: then added that other stuff in the course of the
Speaker 1: background section. And you know, they were probably right about that.
Speaker 1: I'm not disputing their political judge their politicians. They do
Speaker 1: there for a living. I just really wish that the
Speaker 1: impeachment hadn't been only about incitement in some formal sense,
Speaker 1: but had formerly been about the idea that it is
Speaker 1: impeachable offense to lose the election and then walk around
Speaker 1: saying that there was massive fraud and you didn't lose
Speaker 1: the election when there is no evidence for that and
Speaker 1: you're lying. Yeah. I mean, they went with the visceral charge,
Speaker 1: they went with the he sent a mob here to
Speaker 1: kill us. You would think looking around the Senate chamber
Speaker 1: that the people who escaped that attempt escaped that riot
Speaker 1: with their lives, but many cases were you know, really
Speaker 1: threatened and really in jeopardy. Would say, yeah, we do
Speaker 1: have to draw the line somewhere, and I'm going to
Speaker 1: draw the line at the head of the executive branch
Speaker 1: trying to have members of the legislative branch and his
Speaker 1: own vice president murdered or han and that doesn't do it.
Speaker 1: Nothing really is going to I mean, if that doesn't
Speaker 1: if that's not a convincing enough charge even if legally,
Speaker 1: I mean, I take your point, and I agree, and
Speaker 1: I would have certainly had a charge related to his
Speaker 1: overall effort to subvert democracy, subvert the election. But honestly,
Speaker 1: if trying to kill us isn't going to do it,
Speaker 1: nothing else is. So I think it could be argued
Speaker 1: that actually the impeachments weren't feutal, even though the fix
Speaker 1: was in, and neither was going to result in either
Speaker 1: removing the president or banning him from office in the future,
Speaker 1: because impeachment remains the strongest tool that Congress has to
Speaker 1: take a stand and to condemn the president, and it
Speaker 1: goes in the history book insofar as it hasn't been
Speaker 1: used all that frequently. That might change if it gets
Speaker 1: to be used all the time, which may people talk
Speaker 1: about later, but for now it remains an outlying thing.
Speaker 1: And so if the point of impeachment was not ultimately
Speaker 1: in practice to remove Trump, it was probably then to
Speaker 1: send a message to the world that we the House
Speaker 1: Democrats are drawing a red line in the basic practice
Speaker 1: of democratic government, and we're saying in our constitutional government,
Speaker 1: there's certain things you cannot do without consequence. I fully
Speaker 1: agree with that. No, I mean I think it still
Speaker 1: was a semi successful exercise and accountability. For that reason,
Speaker 1: Trump's offenses were aired, the public learned more about them,
Speaker 1: some views of the Trump changed at the margin among
Speaker 1: persuadable Republicans and the electorate. You know, the answer to
Speaker 1: the question should Trump run for office again, the number
Speaker 1: of Republicans who say yes to that actually did minished
Speaker 1: in a statistically meaningful way pre and post impeachment, So
Speaker 1: in all those ways it was valuable. And also the
Speaker 1: fear that it would be a distraction for the new
Speaker 1: president and would get him off his game in relation
Speaker 1: to his agenda, I don't think that's born out. So
Speaker 1: I don't see negative consequences, except to the extent that
Speaker 1: impeachment is becoming common. I think the fact that we
Speaker 1: have had three in the past twenty five years, we
Speaker 1: had one in the nineteenth century, and we've had four
Speaker 1: in my lifetime, the likely scenario is we have more.
Speaker 1: It's a more available political tool, and because it's been
Speaker 1: carried through without ultimate consequence, I think this very strong
Speaker 1: temptation for Republicans is going to be if they regain
Speaker 1: power in the House to figure out somebody to impeach
Speaker 1: kind of because they can. I don't think it's too
Speaker 1: soon to start asking ourselves. One of the big aftermath questions,
Speaker 1: which was all that talk about impeachment in which you
Speaker 1: and I were implicated, was it a good idea? I mean,
Speaker 1: did we cheapen the idea of impeachment in such a
Speaker 1: way that it made it harder to get these impeachments through.
Speaker 1: Did we acclimate people to the idea, or was there,
Speaker 1: in fact something good about starting to talk about impeachment
Speaker 1: as soon as we did. Well. It is a good
Speaker 1: question in a way. Both impeachments, the combined impeachments were
Speaker 1: kind of study and futility, So you know, it's hard
Speaker 1: to say it's hard to feel good about how they
Speaker 1: came out. The other thing I just reread, sort of
Speaker 1: briefly today in preparation for talking to you, was Federal
Speaker 1: sixty five, which is the key federalist piece by Hamilton
Speaker 1: on impeachment and what's amazing about that and I really
Speaker 1: kind of urge people to read it. I feel like
Speaker 1: it anticipates exactly what went wrong with impeachment. In it,
Speaker 1: Hamilton basically says, here's the problem the tendency. Politicians are
Speaker 1: going to have to take ideological positions, side with parties,
Speaker 1: exercise their relative power, and not use their individual judgment
Speaker 1: as people about whether an offense is impeachable. And it's like,
Speaker 1: if you read that right now, it's a precise description
Speaker 1: of what happened in the Senate. I mean, I think
Speaker 1: of what the all but seven Republican senators did, But
Speaker 1: in a way you could argue what Democrats did too.
Speaker 1: I mean, I think the Democrats were right, of course
Speaker 1: in voting to convict, but I don't know that there
Speaker 1: was a lot of independent individual judgment there as opposed
Speaker 1: to following party discipline. Hamilton does right there about how
Speaker 1: the senators ought to exercise independent judgment, and he's pretty
Speaker 1: optimistic about how they will do so, And obviously, in
Speaker 1: part that reflects the framer's naivete about what political parties
Speaker 1: would actually do in real life. Hamilton himself went on
Speaker 1: to found a political party, the Federalists. His collaborator on
Speaker 1: the Federalist Papers, Madison, went on to found the other
Speaker 1: political party on the other side, the Republicans, the Democratic Republicans.
Speaker 1: So they went from being close collaborators and friends in
Speaker 1: producing the Federalist Papers to being brutal political enemies. And
Speaker 1: because they didn't anticipate the rise of political parties, they
Speaker 1: underestimated how partisan the impeachment process would be. That said
Speaker 1: Hamilton himself, you know, in the Federalist Papers was trying
Speaker 1: to be a propagandist. He was trying to get people
Speaker 1: to make the Constitution be ratified, and so he depicted
Speaker 1: the probabilities that people would act selflessly in ways that
Speaker 1: seemed to me knowingly on his part overstated. Given how
Speaker 1: deeply Hamilton was worried about the danger of demagogues, a
Speaker 1: danger he speaks about in the Federalist Papers, he must
Speaker 1: have known that there was a real, real possibility of
Speaker 1: politicians demagoguing an impeachment. So when he makes those arguments
Speaker 1: and acknowledges the counter arguments, it may be this is
Speaker 1: reading him against the grain. It may be that he's
Speaker 1: actually aware that impeachment may not be that effective a
Speaker 1: tool in the long run, but for the purposes of
Speaker 1: his polemical purpose is saying, oh, this is going to work. Great,
Speaker 1: that's very interesting. No, I mean, I think the place
Speaker 1: where i'd be a little skeptical of that defense of
Speaker 1: Hamilton's full foresight of the problem is around political parties.
Speaker 1: The founders, including Hamilton Madison. I mean, I feel funny
Speaker 1: talking to the biographer of Madison about this, because you know,
Speaker 1: you've forgot more about this today than I'll ever know.
Speaker 1: But you know, they're always talking about faction, by which
Speaker 1: they mean political parties, which they think are this kind
Speaker 1: of corrupting factor in democratic government, and they were just wrong.
Speaker 1: I mean, I don't think you know, their democracies all
Speaker 1: seemed to develop political parties the fundamental feature, and they
Speaker 1: felt we could do without them, and not only could
Speaker 1: we do without them, that we wouldn't have a healthy
Speaker 1: democracy unless we did without them. As you say, they
Speaker 1: both immediately founded political parties themselves. It was just a
Speaker 1: kind of fundamental misreading. But I think if you read
Speaker 1: something like The Federalist sixty five, it's shot through with
Speaker 1: this idea of individuals making decisions without fundamental reference to
Speaker 1: being part of political parties. You're totally right. And I
Speaker 1: guess what I'm saying, and I'm making this up as
Speaker 1: I go, so you know, take it for what it's worth. Madison,
Speaker 1: I know, did believe those things. It was totally sincere
Speaker 1: on his part, and the failure to anticipate political parties
Speaker 1: was based on his intellectual I would even say hubrist
Speaker 1: at that moment, which is that he thought he'd designed
Speaker 1: a constitution that would fix the problem political parties. Hamilton, however,
Speaker 1: was not a naive person. Ever, there was nothing naive
Speaker 1: about Hamilton. And although he's talking the Madisonian language and
Speaker 1: the Federalist papers, including in sixty five, what I'm spec
Speaker 1: thinking about is that maybe Hamilton didn't believe it as
Speaker 1: much as Madison definitely did believe it even when Hamilton
Speaker 1: was saying it. So I wonder if he wasn't already
Speaker 1: anticipating something like that and already thinking that there probably
Speaker 1: would be political parties, even as he joined these documents
Speaker 1: declaring that they designed a constitution that would fix the
Speaker 1: problem with political parties. Yeah, that's interesting. Well, let me
Speaker 1: ask you about something else I've been thinking about, which
Speaker 1: is whether there was a fundamental failure on the part
Speaker 1: of the founders in thinking about transitions presidential leadership transitions,
Speaker 1: because two things that they did not include in the
Speaker 1: constitution were any kind of term limits for the head
Speaker 1: of government and I think in the impeachment trial, what
Speaker 1: Jamie you're asking characterized so effectively as this January problem,
Speaker 1: which Mitch McConnell ended up taking advantage of by saying, no,
Speaker 1: we won't impeach him while he's still in office, and
Speaker 1: then it once he wakes he's out of office. He
Speaker 1: believes that there's this loophole, which I don't think is
Speaker 1: supported by constitutional history. However, there is a lack of
Speaker 1: clear procedure and lack of anticipation about this really particular
Speaker 1: problem that seems to arise almost everywhere in the world
Speaker 1: all the time, which is leaders not wanting to leave office,
Speaker 1: including when they lose free and fair elections. You know,
Speaker 1: it may be that those things are related to each other.
Speaker 1: I mean, the Framers didn't have term limits because they
Speaker 1: didn't think that the president was going to step down
Speaker 1: after only a few terms. Hamilton basically wanted an elected monarchy,
Speaker 1: and he wanted Washington to be the first elected monarch.
Speaker 1: And it was only when Washington did step down after
Speaker 1: two terms that this tradition emerged, only subsequently broke by
Speaker 1: FDR and then subsequently put into a constitutional amendment. So
Speaker 1: the fact that they didn't have trem limits. Wasn't a
Speaker 1: you know, it wasn't a bug for them. It was
Speaker 1: a feature. They wanted a strong executive and those of
Speaker 1: them who, including Hamilton, who really wanted something that looked
Speaker 1: more like a monarchic presidency, appreciated that fact. And they
Speaker 1: weren't that worried about the transitions problem. I think insofar
Speaker 1: as they were had Washington in mind. They figured he'd
Speaker 1: always be reelected, and they figured that people who were
Speaker 1: not elected would step down, and that did happen right Adams,
Speaker 1: right out of the box. You know, the second president
Speaker 1: loses an election to Jefferson, and he does step down.
Speaker 1: Another part of it, I think was that they had
Speaker 1: an image of what a gentleman of the late eighteenth
Speaker 1: century cared most about, and that was his reputation. And
Speaker 1: they knew that loss of reputation could be ruinous, and
Speaker 1: doing the kinds of things that Donald Trump did would
Speaker 1: have been reputation destroying. I mean, these were people who
Speaker 1: fought and in Hamilton's case, died for their reputation. I mean,
Speaker 1: people who will fight a duel are people who really
Speaker 1: value reputation above everything else, including possibly you know, life
Speaker 1: and limb so I think that might be why they
Speaker 1: were not as worried about people refusing to step down. Well,
Speaker 1: is it fair to say that while they were obsessed
Speaker 1: fully focused on the problem of demagogues and politics, they
Speaker 1: didn't anticipate the narrower problem of what do you do
Speaker 1: when you've got the demagogue in office and you're trying
Speaker 1: to transition away you trying to get the demagogue to yield.
Speaker 1: I mean, that is the problem we ran into with
Speaker 1: Donald Trump. The fox was in the Henhouse. The demagogue
Speaker 1: was elected president in a flukish way, but legitimately and
Speaker 1: like a demagogue, tried as hard as he possibly could
Speaker 1: not to yield power. And I think historians may look
Speaker 1: back on this period and think we came a lot
Speaker 1: closer than we ever anticipated coming to not having a
Speaker 1: successful democratic transition. In the twenty twenty election, we'll be
Speaker 1: right back. I think your point, Jacob about the Framers
Speaker 1: not really thinking about what to do if a demagogue
Speaker 1: did get elected is profound and I think pretty original,
Speaker 1: because they thought a lot about how to keep him
Speaker 1: out office, but not a lot about what to do
Speaker 1: once he was in office. I think there's a separate
Speaker 1: question of how close we were, and it's one worth exploring.
Speaker 1: I think had the Defense Department had officials who were
Speaker 1: prepared to listen to Trump and deploy troops in his
Speaker 1: defense of his attempt to gain power, that would have
Speaker 1: been an actual coup deeta, not a rag tag mob
Speaker 1: invading the capitol, which was a kind of a fantasy
Speaker 1: of a coup deta rather than the reality of it.
Speaker 1: And I think it's an interesting question of how close
Speaker 1: we came to that, you know, the fact that it
Speaker 1: turns out that there was someone in the Department of Justice,
Speaker 1: a mid level official, but nevertheless an official Department of
Speaker 1: Justice who went to Trump said make me attorney general
Speaker 1: and I will order Georgia to retract its electoral College votes.
Speaker 1: It's pretty astonishing. And if something like that had happened
Speaker 1: in the Defense Department, that really could have led you
Speaker 1: in a coup like direction. So in that sense, I
Speaker 1: think history will bear out your point that it could
Speaker 1: have gone worse. At the same time, it didn't happen
Speaker 1: in those ways, despite the fact that we had Donald Trump,
Speaker 1: and so that could be a potential potential argument on
Speaker 1: the other On the other side, yeah, I think it's
Speaker 1: it's sort of like talking about nuclear war, the minuscule
Speaker 1: chance becomes an intolerable chance. And you know, I don't
Speaker 1: know when I say how close we came. Was it
Speaker 1: a five percent chance? Was it a one percent chance?
Speaker 1: A one percent chance of the collapse of constitutional democracy
Speaker 1: is way too high a chance, as you're saying, I mean,
Speaker 1: maybe what stood between Trump and trying a real coup
Speaker 1: data was that he wouldn't have had support from the markets,
Speaker 1: and he wouldn't have had support from the business community.
Speaker 1: The markets don't seem to have thought at any point
Speaker 1: that there was a meaningful risk of a kudata or
Speaker 1: the breakdown of constitutional democracy, and to me, that has
Speaker 1: to reflect I mean, it's always hard to say what
Speaker 1: the markets you mean when they do something, But when
Speaker 1: the markets don't do anything out of the ordinary, you
Speaker 1: can at least say that they're not desperately panic that
Speaker 1: we're about to have a civil war or war in
Speaker 1: the streets. So I don't know, I mean, I think
Speaker 1: it'd be really interesting to see in retrospect. I wanted
Speaker 1: to go back, Jacob to the point you raised about
Speaker 1: impeachments getting more common, and I'm wondering why you think
Speaker 1: that is. Is it that we have more partisanship. Is
Speaker 1: it that we have more transparency about what government does
Speaker 1: than we used to have. What's your view? Why do
Speaker 1: you think these are more frequent now? I mean, I
Speaker 1: think you know, polarization is a bit of a tautology, right,
Speaker 1: In a more polarized political environment, you get more impeachments,
Speaker 1: and you get more impeachments because you have more polarization.
Speaker 1: One thing I might focus on is norms. Political norms
Speaker 1: starting to fall way earlier than we're focused on. We're
Speaker 1: very focused on Donald Trump's attack on all sorts of
Speaker 1: political norms, which is very true. But I think in
Speaker 1: the nineties there were a lot of things that had
Speaker 1: been norms in politics, including around the justification for impeachment,
Speaker 1: that kind of melted away without a ton of notice.
Speaker 1: And if you want to figure out when things really
Speaker 1: started to break down in Congress, I think it was
Speaker 1: the Gingrich election of nineteen ninety four. Republicans retook the
Speaker 1: House by a very big margin two years after Bill
Speaker 1: Clinton was elected, and new Gingrich was committed to leading
Speaker 1: the Republicans in a very different style than they'd been
Speaker 1: led for many many decades, and essentially he declared an
Speaker 1: end to any cooperation, an idea that politics really was
Speaker 1: war in the sense that anything that passed was going
Speaker 1: to be a political benefit to the Democrats because they
Speaker 1: controlled the White House, and essentially that the goal of
Speaker 1: the party that wasn't in the White House was obstruction.
Speaker 1: That provoked a certain amount of Democratic retaliation. But I
Speaker 1: think impeaching Bill Clinton for you know, what might have
Speaker 1: been abhorrent personal behavior, but was I think still by
Speaker 1: any constitutional definition, not political crime, not high crimes and misdemeanors,
Speaker 1: started to break down those norms. Can I ask a
Speaker 1: further follow up question about that Gingridge moment in nineteen
Speaker 1: ninety four. Do you think that partly what you're describing
Speaker 1: is the first time in modern American history that the
Speaker 1: Republican Party had people in its senior leadership positions who
Speaker 1: were overtly populist. I mean, there, you know, there was
Speaker 1: George Wallace, but he was an insurgent candidate who didn't
Speaker 1: ultimately make it nationally. You know, there had been Pat Buchanan,
Speaker 1: but also had not made it to the very senior
Speaker 1: most ranks of Republican leadership. Nixon didn't have the personality
Speaker 1: to be a populist. I wonder if the Gingrich model
Speaker 1: of Republican populism contributed to the emergence of the breakdown
Speaker 1: of norms precisely because it was populist. And you know,
Speaker 1: there have been democratic populist for many, many years. But
Speaker 1: you know, most political systems have one side that's the
Speaker 1: populist party, and the other side it's not necessarily the
Speaker 1: populist party. Here you suddenly had both sides importing some
Speaker 1: degree of populism. And populists like to break the rules, right.
Speaker 1: Populists always say the rules of normal politics are rules
Speaker 1: designed to serve the interests of the rich and the powerful.
Speaker 1: So let's, you know, burn it all down. Yeah, I
Speaker 1: think that's I think that's very insightful. I mean, Republicans
Speaker 1: hadn't had a real populist moment since McCarthyism. I mean,
Speaker 1: I think McCarthyism was a form of rightland populism, but
Speaker 1: in the long period between the early fifties and the nineties,
Speaker 1: populism was more associated with southern segregationists. I do think
Speaker 1: what Gingrich was trying to do certainly had the tonality
Speaker 1: of populism, but it's sort of populism combined with obstruction
Speaker 1: as an alternative to compromise and legislation. I mean, there's
Speaker 1: a fundamental question about whether the job of a member
Speaker 1: of Congress is to pass legislation. Gingrich came in and said, nope,
Speaker 1: our job is to stop all of it. There is
Speaker 1: no version of a healthcare bill that Republicans could ever
Speaker 1: support that would just be good for Democrats. It's more
Speaker 1: government block everything. And that's what they did. And I
Speaker 1: think that that was the kind of change in the
Speaker 1: rules of the game that probably led to the Clinton impeachment.
Speaker 1: And I speak of someone who thinks both impeachments of
Speaker 1: Trump were justified. So I don't take the position that
Speaker 1: that was illegitimate democratic retaliation. But if Republicans hadn't impeached
Speaker 1: Bill Clinton, do I think that there would have been
Speaker 1: two impeachments against Donald Trump? Maybe not. I think emerging
Speaker 1: from what you're saying is maybe the beginnings of a
Speaker 1: collaborative hypothesis here about the rise of impeachments. And it
Speaker 1: might run something like this, if you have populist parties
Speaker 1: on both sides and they do the obstruction, which is
Speaker 1: one of the things that populists are prepared to do.
Speaker 1: Because the populace doesn't just want to pass legislation it's popular,
Speaker 1: but wants to block the other side from usurping the
Speaker 1: people's will. Then you get a higher probability of impeachment
Speaker 1: because impeachment itself, in some way is the ultimate form
Speaker 1: of obstruction. Right. So, you know, Bill Clinton's supporters said
Speaker 1: when he was impeached, listen, the Republicans are just doing
Speaker 1: this to block him from being president, from doing what
Speaker 1: he wants to. It's just an obstructionist technique. And similarly,
Speaker 1: Donald Trump supporters said that they said, you know, these
Speaker 1: impeachment efforts, especially the first one, we're just intended to
Speaker 1: interfere with his agenda as president. And I think what
Speaker 1: you're saying is maybe there is something to that, in
Speaker 1: the sense that obstruction is connected to polarization, and impeachment
Speaker 1: is a form of obstruction, sort of the ultimate form
Speaker 1: of obstruction. And then also explains by the way, why
Speaker 1: Joe Biden seemed so eager to get the current the
Speaker 1: third impeachment over quickly because he doesn't want the idea
Speaker 1: of impeachment anywhere in this story. He just wants to
Speaker 1: get on with his legislative agenda. I mean, this is
Speaker 1: a very interesting hypothesis. It would explain why we have
Speaker 1: more impeachments, but also it would explain why that's not
Speaker 1: the end of the world. You know. It would explain
Speaker 1: that politics evolves and in a moment where you have
Speaker 1: a lot of partisan populism, you need tools to express that,
Speaker 1: and maybe one of those tools is and maybe we
Speaker 1: get more impeachment efforts going forward as a consequence, and
Speaker 1: maybe that's fine. I think we probably will. And it
Speaker 1: does mean some extent that the currency is devalued. The
Speaker 1: more common it is, the less you know, historically aberrant
Speaker 1: it is. I mean, I remember I was ten years
Speaker 1: old when Nixon was impeached, and I was really into it.
Speaker 1: I was riveted. But part of the excitement was, this
Speaker 1: is something that's never happened before in anybody's lifetime. It
Speaker 1: had been eighteen sixty eight. There was no living person
Speaker 1: who could tell you how impeachment worked. And they are
Speaker 1: all these books, you know that came out and all
Speaker 1: these scholars had to kind of figure out impeachment for
Speaker 1: a new century. It's becoming a lot more familiar. People
Speaker 1: who in nineteen seventy four had no idea how an
Speaker 1: impeachment actually happened. Now know exactly how it goes because
Speaker 1: we've been doing it a lot. I wonder if impeachments, though,
Speaker 1: could actually be less upsetting to all of us if
Speaker 1: we come to see them as base basically the strongest
Speaker 1: thing that Congress can do to condemn a president, rather
Speaker 1: than as a process of a quasi judicial nature with
Speaker 1: a verdict that might actually lead to an outcome, you know.
Speaker 1: I mean, we have a tendency and the media as
Speaker 1: a tendency too, to think about stories as legal dramas.
Speaker 1: And it's hard to have a legal drama if you
Speaker 1: know already what the outcome is going to be. And
Speaker 1: so in some sense, these impeachments weren't that dramatic because
Speaker 1: we knew what was going to happen at the end
Speaker 1: of them. But if we get outside of that framework
Speaker 1: and say, okay, we are going to have more impeachments,
Speaker 1: but it's going to be reserved for situations where Congress
Speaker 1: what wants to express its highest form of sanction for
Speaker 1: a president, that might be good enough. And it might
Speaker 1: even take us retrospectively back to the Clinton situation, when
Speaker 1: we both agree that what Clinton did wasn't a high
Speaker 1: crime or misdemeanor under the Constitution. But on the other hand,
Speaker 1: he did lie under oath having had an affair with
Speaker 1: the twenties thing year old secretary in the White House.
Speaker 1: You know, two very very bad things, and you know,
Speaker 1: bad in different ways from one another. And I think
Speaker 1: in that sense, the idea that Congress felt it had
Speaker 1: to say something to say that this conduct is not okay,
Speaker 1: doesn't actually seem so outrageous in retrospect. Yeah, but fundamentally,
Speaker 1: in a democracy, you make decisions in an election and
Speaker 1: you have to live with those decisions until the next election.
Speaker 1: And at the state level, many states have what I
Speaker 1: think was originally a kind of progressive or a reform
Speaker 1: of recall, and so as soon as the governors elected
Speaker 1: in some states, including often in California, people are trying
Speaker 1: to get petitioning to get recall on the ballot, and
Speaker 1: so you're in a constant state of argument basically about
Speaker 1: the legitimacy of an elected official and the question of
Speaker 1: whether it elected official is going to serve out his term.
Speaker 1: I think that basically not productive most of the time.
Speaker 1: There are obviously situations where there are corrupt officials, officials
Speaker 1: who abuse power, officials who deserve to be recalled before
Speaker 1: their term is over. But you can't be having a
Speaker 1: version of the election all the time. And I think
Speaker 1: you've got to reserve these removal tools, impeachment being the
Speaker 1: ultimate one for the rare cases, because otherwise, you know,
Speaker 1: again it's it's politics as warfare all of the time.
Speaker 1: But you're not saying that impeachment has to be reserved
Speaker 1: for situations where it will work. No, I'm saying it
Speaker 1: has to be reserved for situations in which it's justified,
Speaker 1: in which what we're talking about is a high crime
Speaker 1: in the political sense that it is something like what
Speaker 1: we've just been through with Donald Trump, and not like
Speaker 1: what we went through with Bill Clinton, where objection to
Speaker 1: politics and some personal misbehavior or scandal is kind of
Speaker 1: cobbled together as an argument for removal from office. Just
Speaker 1: to close on a personal note, I think the first
Speaker 1: time I was ever on a podcast was when I
Speaker 1: was on your Trump cast talking about impeachment and related issues.
Speaker 1: And at the time you hadn't started Pushkin and I
Speaker 1: hadn't dreamt of being on the other side of the
Speaker 1: microphone for a podcast. So this show definitely would not
Speaker 1: exist or not for the question of the impeachment of
Speaker 1: Donald Trump. I can't exactly thank Donald Trump for that,
Speaker 1: but I want to thank you for this conversation and
Speaker 1: for the previous conversations that we had. They have had
Speaker 1: a transformative effect on my life, very literally. Well, Noah,
Speaker 1: the one part of impeachment I can really endorse is
Speaker 1: talking to you about it. It was the part of
Speaker 1: impeachment I really enjoyed. So I'm sorry that conversation is
Speaker 1: going to end now, at least for a while, but
Speaker 1: I'm sure we'll find some other things to talk about.
Speaker 1: Thanks Jacob, Thank you, Noah. It was a huge pleasure
Speaker 1: to talk to Jacob, as it always is for me.
Speaker 1: The key takeaways have to do with Jacob's central insight
Speaker 1: into the idea that impeachments are getting more and more frequent.
Speaker 1: None until the middle of the nineteenth century, from the
Speaker 1: time of the founding than a possible impeachment of Richard
Speaker 1: Nixon so bad from Nixon's perspective that he resigned before
Speaker 1: he could actually be impeached, and then in rapid succession,
Speaker 1: Bill Clinton's impeachment at the end of his presidency and
Speaker 1: not one but two impeachments of Donald Trump. Jacob thinks
Speaker 1: this means we're going to have a lot more impeachment
Speaker 1: going forward. And what's more, he sees this as intimately
Speaker 1: connected to the rise of partisanship and polarization in our politics.
Speaker 1: If Jacob's right, we're going to have more, not less impeachment.
Speaker 1: A second important takeaway is to ask ourselves, is that
Speaker 1: necessarily a bad thing? My own view of impeachment trials
Speaker 1: after the experience of these two, is it We would
Speaker 1: be making a mistake if we conceptualize those trials primarily
Speaker 1: in terms of their success or failure in punishing the
Speaker 1: president by removing him from office or by banning him
Speaker 1: from running again. The process is simply too tied up
Speaker 1: in politics for that to be the necessary outcome to
Speaker 1: justify the means. To me, impeachment today stands for the
Speaker 1: opportunity that Congress has to insist that it will state
Speaker 1: once and for the record that certain conduct by the
Speaker 1: president is entirely unacceptable, and that if he does so,
Speaker 1: Congress must take action of impeachment or else send the
Speaker 1: message to the ages that the president's conduct was normal
Speaker 1: or acceptable. To me, Donald Trump's conduct both the first
Speaker 1: time he was impeached and the second time clearly passed
Speaker 1: that bar. As Jacob mentioned in our conversation, Trump's impeachments
Speaker 1: both followed from the same course of conduct he was
Speaker 1: trying to break the twenty twenty Democratic election. Will Donald
Speaker 1: Trump ultimately be criminally prosecuted for this or other conduct.
Speaker 1: It remains possible, but relatively unlikely. Already, Georgia law enforcement
Speaker 1: is investigating Trump's call to the Secretary of State, where
Speaker 1: he asked him to find or directed him to find
Speaker 1: eleven thousand more votes, potentially threatening him with criminal prosecution
Speaker 1: if he did not. That might lead to a prosecution,
Speaker 1: but my guess is that the legal issues will be
Speaker 1: too close for the case to be brought to a jury.
Speaker 1: In a criminal trial, a prosecutor would have to prove
Speaker 1: to a jury beyond a reasonable doubt two different things. First,
Speaker 1: that Donald Trump's words were directed to the incitement of violence,
Speaker 1: which probably means in practice that it would have to
Speaker 1: be shown that he intended to incite violence and or
Speaker 1: that his words literally were an incitement to violence. The
Speaker 1: second component would be to prove that Trump's words were
Speaker 1: actually likely to incite political violence. The latter would be
Speaker 1: quite easy to prove, because, after all, after Donald Trump spoke,
Speaker 1: there was indeed a violent riot, But the former would
Speaker 1: be very difficult to prove because Donald Trump was characteristically canny.
Speaker 1: He did not use words that literally called for the
Speaker 1: use of violence, and it would not be simple to
Speaker 1: prove that he intended for that violence to occur. Ultimately,
Speaker 1: then it seems most probable to me that the jury
Speaker 1: for determining Donald Trump's culpability for the events of January
Speaker 1: sixth will be that most evanescent and yet most significant
Speaker 1: of juries the jury of history. Until the next time
Speaker 1: I speak to you, be careful, be safe, and be well.
Speaker 1: Deep background is brought to you by Pushkin Industries. Our
Speaker 1: producer is Mo laboord our engineer is Martin Gonzales, and
Speaker 1: our shorerunner is Sophie Crane mckibbon. Editorial support from noahm Osband.
Speaker 1: Theme music by Luis Gara. Thanks to Mia Lobell, Julia Barton,
Speaker 1: Lydia Jean Cott, Heather Faine, Carl mcniori, Maggie Taylor, Eric Sandler,
Speaker 1: and Jacob Weisberg. You can find me on Twitter at
Speaker 1: Noah R. Feldman. I also write a column for Bloomberg Opinion,
Speaker 1: which you can find at bloomberg dot com slash Feldman.
Speaker 1: To discover Bloomberg's original slate of podcasts, go to bloomberg
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