WEBVTT - The Impeachment Era 0:00:15.356 --> 0:00:22.916 Pushkin No I hear before we get into this week's episode, 0:00:22.956 --> 0:00:24.756 I wanted to tell you about something new from the 0:00:24.796 --> 0:00:28.956 Deep Background team. Our Deep Bench miniseries explored how the 0:00:29.036 --> 0:00:32.756 Federalist Society became the most powerful legal organization in the country. 0:00:33.196 --> 0:00:36.076 My producer, Lydia Jeancott and I have now authored an 0:00:36.076 --> 0:00:39.036 audiobook about the rise of the Federalist Society and the 0:00:39.116 --> 0:00:43.316 forces that could fracture it. Takeover How a Conservative Student 0:00:43.316 --> 0:00:46.996 Club Captured the Supreme Court includes additional interviews and a 0:00:47.036 --> 0:00:49.756 new preface and afterward. The book will be published on 0:00:49.796 --> 0:00:53.756 February twenty third, but until then Deep Background listeners can 0:00:53.756 --> 0:00:59.276 purchase Takeover only at Pushkin dot fm slash Takeover. Take 0:00:59.316 --> 0:01:02.236 advantage of this exclusive sale for Deep Background listeners and 0:01:02.356 --> 0:01:09.276 download Takeover now at Pushkin dot fm, slash Takeover from 0:01:09.276 --> 0:01:12.676 Pushkin Industries. This is Deep Background, the show where we 0:01:12.716 --> 0:01:16.556 explore the stories behind the stories in the news. I'm 0:01:16.716 --> 0:01:22.156 Noah Feldman. An impeachment trial in the Senate is supposed 0:01:22.156 --> 0:01:25.676 to be one of the most rare revelatory events in 0:01:25.756 --> 0:01:31.236 American politics, but we've had two in the last year alone. 0:01:32.356 --> 0:01:36.236 What are the takeaways of this second Senate impeachment trial, 0:01:36.556 --> 0:01:40.516 and indeed of the whole phenomenon of impeachment, one that 0:01:40.636 --> 0:01:46.676 is speeding up with remarkable velocity. Here to discuss impeachment 0:01:46.716 --> 0:01:49.836 with me the details of this trial, the comparison to 0:01:49.876 --> 0:01:53.636 the first one, and the long historical trajectory of impeachment 0:01:53.876 --> 0:01:58.596 from the founding into the future is Jacob Weisberg. Listeners 0:01:58.596 --> 0:02:01.356 will know Jacob as the CEO and co founder of 0:02:01.396 --> 0:02:06.236 Pushkin Industries, the company that produces this show. What you 0:02:06.316 --> 0:02:08.756 might not know is that the way I ended up 0:02:08.796 --> 0:02:11.436 having a podcast of any kind at all, not to 0:02:11.476 --> 0:02:15.356 mention one on Pushkin, goes back to conversations that Jacob 0:02:15.356 --> 0:02:17.996 and I began to have in the early days of 0:02:18.036 --> 0:02:20.956 the Trump presidency. Back as early as the fall of 0:02:20.996 --> 0:02:24.676 twenty seventeen, Jacob and I co authored an article in 0:02:24.716 --> 0:02:27.716 The New York Review of Books which laid out the 0:02:27.836 --> 0:02:31.476 case for impeachment against Trump based on the conduct that 0:02:31.556 --> 0:02:35.276 he had already committed at that point, and based on 0:02:35.316 --> 0:02:39.116 the underlying constitutional principles of what count as high crimes 0:02:39.156 --> 0:02:43.196 and misdemeanors under the Constitution. That article was the beginning 0:02:43.236 --> 0:02:46.676 for me of delving very deeply into the question of 0:02:46.716 --> 0:02:51.476 the constitutional status of impeachment. That and subsequent research and 0:02:51.516 --> 0:02:53.916 writing were the reasons that I ended up getting called 0:02:53.956 --> 0:02:59.356 to testify before the House in the first impeachment process 0:02:59.396 --> 0:03:07.916 against Donald Trump. Jacob, Welcome back to Deep Background, Jacob. 0:03:07.996 --> 0:03:10.796 Let me ask you some specific concrete questions about what 0:03:10.876 --> 0:03:14.356 you expected in this second impeachment trial and what happened. 0:03:15.356 --> 0:03:17.436 First of all, did you have any different expectations the 0:03:17.476 --> 0:03:19.196 second time from the first time, or did you figure 0:03:19.316 --> 0:03:20.796 the fix was in the second time just as it 0:03:20.836 --> 0:03:26.156 had been the first time. I think people overestimate the inevitability. 0:03:25.996 --> 0:03:27.916 If you told me at the beginning there will be 0:03:28.156 --> 0:03:33.236 seven Senate Republicans who will make an independent decision and 0:03:33.516 --> 0:03:36.316 vote for impeachment, I would have been surprised that there 0:03:36.316 --> 0:03:38.636 would be that many. But I don't think that was 0:03:38.676 --> 0:03:43.156 completely inevitable. I think a slightly different dynamic, including possibly 0:03:44.116 --> 0:03:49.796 more evidence about Trump's knowledge on January six, could have 0:03:50.316 --> 0:03:52.556 provoked a different outcome. I don't know what do you think. 0:03:52.596 --> 0:03:55.036 Do you think this was one hundred percent foreground conclusion. 0:03:56.596 --> 0:03:58.756 I sort of think that it was. I mean, for me, 0:03:58.836 --> 0:04:02.276 the alternative scenario is more like what if a congressman 0:04:02.516 --> 0:04:05.916 had been killed or congresswoman had been killed on January six, 0:04:06.556 --> 0:04:08.876 You know, would that have changed the result? Had it 0:04:08.876 --> 0:04:12.436 been a Democratic congressman or congresswoman, would that have brought 0:04:12.476 --> 0:04:14.236 to a different result? If it had been a Republican 0:04:14.276 --> 0:04:16.236 would have been a different result. What if Mike Pence 0:04:16.436 --> 0:04:19.916 had been badly beaten by the crowd but managed somehow 0:04:19.956 --> 0:04:22.716 to escape. Would that have produced a different result? Based 0:04:22.756 --> 0:04:24.876 on the fact that we saw going in, I didn't 0:04:24.876 --> 0:04:27.236 see a way that McConnell could take a different stance 0:04:27.276 --> 0:04:29.516 than he did, mostly because you know, as we all, 0:04:30.556 --> 0:04:33.996 lest we be confused about the fact that McConnell despises Trump, 0:04:34.076 --> 0:04:36.716 which is clear from his speech about Trump, McConnell is 0:04:36.716 --> 0:04:39.036 also a facilitated Trump in a serious way for the 0:04:39.116 --> 0:04:42.956 last four years. So you know that the accommodationism, to me, 0:04:43.156 --> 0:04:46.116 indicated that there was no real way for McConnell to 0:04:46.276 --> 0:04:49.316 realign where he would where he would choose to to realign. 0:04:49.356 --> 0:04:51.956 So I was not surprised by the outcome. I do 0:04:52.076 --> 0:04:54.356 think it could have been different if the violence had 0:04:54.356 --> 0:04:57.236 come out in some different way. By the way, similarly, 0:04:57.316 --> 0:05:00.316 if the Capitol Police or the Washington DC Police or 0:05:00.396 --> 0:05:03.716 some combination had defended the capital in such a way 0:05:03.716 --> 0:05:05.836 that no one had breached the perimeter of the capital 0:05:06.556 --> 0:05:08.956 even if they had tried. I don't think Trump would 0:05:08.956 --> 0:05:12.116 have been impeached. Even if the crowd had made the 0:05:12.156 --> 0:05:13.996 state he had made the identical speech, and the crowd 0:05:13.996 --> 0:05:17.076 had made the same efforts but hadn't been held off, 0:05:17.396 --> 0:05:18.876 I don't think we would have seen an impeachment. I 0:05:18.916 --> 0:05:22.116 think the impeachment happened because of the penetration of the Capitol. 0:05:22.276 --> 0:05:24.156 And that actually leads me to ask you a question, Jacob, 0:05:24.156 --> 0:05:26.516 which is do you think the case was stronger in 0:05:26.556 --> 0:05:28.756 the second impeachment than in the first impeachment. I mean, 0:05:28.836 --> 0:05:30.636 they got more Republicans in both in the House and 0:05:30.676 --> 0:05:32.396 the Senate than the first time. Do you think that's 0:05:32.396 --> 0:05:33.756 because the case was stronger or do you think it 0:05:33.796 --> 0:05:35.556 was because Trump was less powerful because he was out 0:05:35.596 --> 0:05:38.356 of office and had lost the election. It's funny I 0:05:38.396 --> 0:05:41.076 think that both impeachments it could have been one impeachment 0:05:41.116 --> 0:05:42.956 because both of them were about the same thing. They 0:05:42.956 --> 0:05:46.236 were about trying to steal an election. The first one 0:05:46.276 --> 0:05:49.196 was about trying to cheat before the election, and the 0:05:49.236 --> 0:05:52.996 second one was about trying to reverse the results. Of 0:05:53.036 --> 0:05:59.276 the election. They reflected Trump's democratic dishonesty and his politically 0:05:59.276 --> 0:06:02.716 corrupt ambitions, and in that sense they were utterly valid. 0:06:02.876 --> 0:06:05.876 I mean, if there is anything that impeachment is about, 0:06:07.036 --> 0:06:10.596 it's trying to deal in an election. I mean, it's 0:06:10.636 --> 0:06:13.436 hard to imagine something that a crime that it's more 0:06:13.476 --> 0:06:18.356 political in nature. Something to me that more explicitly meets 0:06:18.396 --> 0:06:22.916 the constitutional understanding of a high crime. Look, I totally 0:06:22.916 --> 0:06:24.476 agree with what you said. I think they were about 0:06:24.516 --> 0:06:27.036 the same thing. I have to say, I don't think 0:06:27.076 --> 0:06:31.476 that that was made clear by the managers in the 0:06:31.756 --> 0:06:35.316 second impeachment at all. I think the first impeachment focused 0:06:35.396 --> 0:06:38.436 on something that Trump had done but had failed to do, 0:06:38.876 --> 0:06:40.636 and the weakness of the case there was that the 0:06:40.636 --> 0:06:44.476 allegation was that he tried to do something, namely, get 0:06:44.516 --> 0:06:47.196 the president of Ukraine to investigate Joe Biden and Hunter Biden, 0:06:47.356 --> 0:06:49.916 and he had failed. So his strongest defense in the 0:06:49.956 --> 0:06:53.676 real world was something like, oh, come on, nothing happened. 0:06:54.236 --> 0:06:56.156 And the second time it was something that Trump had 0:06:56.196 --> 0:06:57.596 done in the sense that he gave the speech and 0:06:57.636 --> 0:06:59.836 then the capital was breached, but the problem was that 0:06:59.916 --> 0:07:03.076 he didn't do it, and so therefore he had to 0:07:03.076 --> 0:07:07.796 be accused of incitement, which is by its just structural nature. 0:07:08.076 --> 0:07:10.796 Incitement is the idea that I suggested that you do something, 0:07:10.796 --> 0:07:13.916 and then you did it. So there's always some intervening cause, 0:07:14.196 --> 0:07:16.836 namely what you've done in an incitement trial, and that 0:07:16.996 --> 0:07:19.316 enabled Trump to back away and say hey, or through 0:07:19.316 --> 0:07:21.996 his lawyers, I didn't actually do this, So in each 0:07:22.036 --> 0:07:25.596 case he had some defense available to him. So I 0:07:25.636 --> 0:07:26.996 agree they were about the same thing, but I don't 0:07:27.036 --> 0:07:29.276 think they played out that way in the mind of 0:07:29.316 --> 0:07:33.596 the public. I mean, I'm thinking with this impeachment, particularly 0:07:33.596 --> 0:07:36.276 about the context of his call to the Georgia Secretary 0:07:36.316 --> 0:07:40.276 of State and saying find me eleven thousand votes. I mean, 0:07:40.276 --> 0:07:46.036 there is a context beginning on election night of Trump 0:07:46.676 --> 0:07:49.556 rejecting the results and trying to find a way to 0:07:49.596 --> 0:07:53.716 reverse them, and in that context, the January sixth speech 0:07:53.996 --> 0:07:56.436 sounds totally different. I agree with you. If there hadn't 0:07:56.476 --> 0:07:58.636 been violence the capital, you know, if they had enbreached 0:07:58.636 --> 0:08:00.956 the Capitol, it would have just read like another incendiary 0:08:00.996 --> 0:08:04.716 Trump speech and it would have been dismissable. But it 0:08:04.836 --> 0:08:09.956 was in context the last effort that began on election 0:08:10.036 --> 0:08:13.956 day to find a way to reverse the result. I 0:08:13.996 --> 0:08:16.836 actually really wish that the articles of impeachment had not 0:08:17.036 --> 0:08:20.156 been for incitement to violence, but had been articles of 0:08:20.196 --> 0:08:24.876 impeachment specifically saying, you know, Donald J. Trump tried to 0:08:24.916 --> 0:08:29.356 subvert democracy itself, first by denying the legitimacy of the 0:08:29.356 --> 0:08:32.636 election in the run up, then by falsely claiming after 0:08:32.676 --> 0:08:35.036 the fact that the election results were rigged when that 0:08:35.156 --> 0:08:38.236 was not true and it was clearly false, and then 0:08:38.396 --> 0:08:40.916 ultimately by you know, call it a second or a 0:08:40.956 --> 0:08:45.796 third article of impeachment, by inciting the violence. My guess 0:08:45.836 --> 0:08:47.996 about why the Democrats didn't do that, and it's just 0:08:48.036 --> 0:08:51.076 a guess, is that they were worried that if they 0:08:51.636 --> 0:08:53.956 made the denial of the legitimacy of the elections into 0:08:53.996 --> 0:08:57.836 an impeachable offense, they wouldn't get any Republican votes, because 0:08:57.836 --> 0:09:01.196 so many Republicans were publicly on the record as saying 0:09:01.316 --> 0:09:06.436 that the election results were rigged, and on the contrary, 0:09:06.516 --> 0:09:09.236 no one in Congress was willing to say openly that 0:09:09.236 --> 0:09:12.276 it was a good thing to invade the capital. And 0:09:12.316 --> 0:09:14.476 so I think they guess, this is just you know, 0:09:14.596 --> 0:09:17.716 reconstructing that they would do better in terms of the 0:09:17.796 --> 0:09:21.156 votes if they just restricted the charge to incitement and 0:09:21.196 --> 0:09:23.556 then added that other stuff in the course of the 0:09:23.596 --> 0:09:27.796 background section. And you know, they were probably right about that. 0:09:27.796 --> 0:09:29.876 I'm not disputing their political judge their politicians. They do 0:09:29.916 --> 0:09:32.116 there for a living. I just really wish that the 0:09:32.116 --> 0:09:36.556 impeachment hadn't been only about incitement in some formal sense, 0:09:36.596 --> 0:09:38.476 but had formerly been about the idea that it is 0:09:38.516 --> 0:09:41.436 impeachable offense to lose the election and then walk around 0:09:41.516 --> 0:09:44.556 saying that there was massive fraud and you didn't lose 0:09:44.556 --> 0:09:47.316 the election when there is no evidence for that and 0:09:47.356 --> 0:09:50.996 you're lying. Yeah. I mean, they went with the visceral charge, 0:09:51.116 --> 0:09:54.356 they went with the he sent a mob here to 0:09:54.476 --> 0:09:57.676 kill us. You would think looking around the Senate chamber 0:09:57.996 --> 0:10:03.716 that the people who escaped that attempt escaped that riot 0:10:03.956 --> 0:10:08.116 with their lives, but many cases were you know, really 0:10:08.196 --> 0:10:11.516 threatened and really in jeopardy. Would say, yeah, we do 0:10:11.556 --> 0:10:13.116 have to draw the line somewhere, and I'm going to 0:10:13.196 --> 0:10:15.636 draw the line at the head of the executive branch 0:10:16.076 --> 0:10:19.316 trying to have members of the legislative branch and his 0:10:19.436 --> 0:10:23.596 own vice president murdered or han and that doesn't do it. 0:10:23.836 --> 0:10:26.196 Nothing really is going to I mean, if that doesn't 0:10:26.236 --> 0:10:30.276 if that's not a convincing enough charge even if legally, 0:10:30.996 --> 0:10:33.836 I mean, I take your point, and I agree, and 0:10:33.876 --> 0:10:37.356 I would have certainly had a charge related to his 0:10:37.476 --> 0:10:41.476 overall effort to subvert democracy, subvert the election. But honestly, 0:10:41.516 --> 0:10:44.316 if trying to kill us isn't going to do it, 0:10:44.396 --> 0:10:47.916 nothing else is. So I think it could be argued 0:10:47.956 --> 0:10:52.596 that actually the impeachments weren't feutal, even though the fix 0:10:52.716 --> 0:10:55.476 was in, and neither was going to result in either 0:10:55.516 --> 0:10:58.756 removing the president or banning him from office in the future, 0:10:59.636 --> 0:11:04.916 because impeachment remains the strongest tool that Congress has to 0:11:05.036 --> 0:11:08.156 take a stand and to condemn the president, and it 0:11:08.156 --> 0:11:10.116 goes in the history book insofar as it hasn't been 0:11:10.196 --> 0:11:12.436 used all that frequently. That might change if it gets 0:11:12.436 --> 0:11:13.876 to be used all the time, which may people talk 0:11:13.916 --> 0:11:16.836 about later, but for now it remains an outlying thing. 0:11:17.876 --> 0:11:22.076 And so if the point of impeachment was not ultimately 0:11:22.076 --> 0:11:26.276 in practice to remove Trump, it was probably then to 0:11:26.356 --> 0:11:30.356 send a message to the world that we the House 0:11:30.396 --> 0:11:34.916 Democrats are drawing a red line in the basic practice 0:11:34.956 --> 0:11:38.476 of democratic government, and we're saying in our constitutional government, 0:11:38.476 --> 0:11:42.796 there's certain things you cannot do without consequence. I fully 0:11:42.836 --> 0:11:44.516 agree with that. No, I mean I think it still 0:11:44.676 --> 0:11:49.236 was a semi successful exercise and accountability. For that reason, 0:11:49.636 --> 0:11:53.876 Trump's offenses were aired, the public learned more about them, 0:11:54.316 --> 0:11:57.436 some views of the Trump changed at the margin among 0:11:57.996 --> 0:12:00.996 persuadable Republicans and the electorate. You know, the answer to 0:12:01.036 --> 0:12:06.316 the question should Trump run for office again, the number 0:12:06.356 --> 0:12:09.636 of Republicans who say yes to that actually did minished 0:12:09.956 --> 0:12:14.196 in a statistically meaningful way pre and post impeachment, So 0:12:14.196 --> 0:12:17.996 in all those ways it was valuable. And also the 0:12:18.076 --> 0:12:20.876 fear that it would be a distraction for the new 0:12:20.956 --> 0:12:24.036 president and would get him off his game in relation 0:12:24.116 --> 0:12:26.596 to his agenda, I don't think that's born out. So 0:12:26.636 --> 0:12:31.276 I don't see negative consequences, except to the extent that 0:12:31.436 --> 0:12:36.596 impeachment is becoming common. I think the fact that we 0:12:36.676 --> 0:12:42.076 have had three in the past twenty five years, we 0:12:42.156 --> 0:12:45.876 had one in the nineteenth century, and we've had four 0:12:46.436 --> 0:12:50.356 in my lifetime, the likely scenario is we have more. 0:12:50.596 --> 0:12:54.836 It's a more available political tool, and because it's been 0:12:55.596 --> 0:13:00.276 carried through without ultimate consequence, I think this very strong 0:13:00.396 --> 0:13:03.956 temptation for Republicans is going to be if they regain 0:13:04.876 --> 0:13:08.956 power in the House to figure out somebody to impeach 0:13:09.236 --> 0:13:12.756 kind of because they can. I don't think it's too 0:13:12.796 --> 0:13:17.036 soon to start asking ourselves. One of the big aftermath questions, 0:13:17.276 --> 0:13:20.596 which was all that talk about impeachment in which you 0:13:20.676 --> 0:13:24.516 and I were implicated, was it a good idea? I mean, 0:13:24.596 --> 0:13:28.916 did we cheapen the idea of impeachment in such a 0:13:28.916 --> 0:13:30.956 way that it made it harder to get these impeachments through. 0:13:31.076 --> 0:13:36.476 Did we acclimate people to the idea, or was there, 0:13:36.516 --> 0:13:39.036 in fact something good about starting to talk about impeachment 0:13:39.116 --> 0:13:43.396 as soon as we did. Well. It is a good 0:13:43.476 --> 0:13:47.516 question in a way. Both impeachments, the combined impeachments were 0:13:47.716 --> 0:13:50.276 kind of study and futility, So you know, it's hard 0:13:50.316 --> 0:13:53.356 to say it's hard to feel good about how they 0:13:53.436 --> 0:13:56.836 came out. The other thing I just reread, sort of 0:13:56.836 --> 0:14:00.476 briefly today in preparation for talking to you, was Federal 0:14:00.636 --> 0:14:04.996 sixty five, which is the key federalist piece by Hamilton 0:14:05.116 --> 0:14:08.996 on impeachment and what's amazing about that and I really 0:14:09.236 --> 0:14:11.476 kind of urge people to read it. I feel like 0:14:11.556 --> 0:14:15.876 it anticipates exactly what went wrong with impeachment. In it, 0:14:16.036 --> 0:14:22.236 Hamilton basically says, here's the problem the tendency. Politicians are 0:14:22.276 --> 0:14:28.836 going to have to take ideological positions, side with parties, 0:14:29.276 --> 0:14:35.116 exercise their relative power, and not use their individual judgment 0:14:35.796 --> 0:14:40.236 as people about whether an offense is impeachable. And it's like, 0:14:40.276 --> 0:14:43.596 if you read that right now, it's a precise description 0:14:44.436 --> 0:14:47.156 of what happened in the Senate. I mean, I think 0:14:47.196 --> 0:14:50.596 of what the all but seven Republican senators did, But 0:14:50.676 --> 0:14:53.476 in a way you could argue what Democrats did too. 0:14:53.516 --> 0:14:55.516 I mean, I think the Democrats were right, of course 0:14:55.796 --> 0:14:59.476 in voting to convict, but I don't know that there 0:14:59.516 --> 0:15:02.796 was a lot of independent individual judgment there as opposed 0:15:02.796 --> 0:15:08.356 to following party discipline. Hamilton does right there about how 0:15:09.156 --> 0:15:12.076 the senators ought to exercise independent judgment, and he's pretty 0:15:12.076 --> 0:15:15.236 optimistic about how they will do so, And obviously, in 0:15:15.316 --> 0:15:20.396 part that reflects the framer's naivete about what political parties 0:15:20.396 --> 0:15:23.476 would actually do in real life. Hamilton himself went on 0:15:23.516 --> 0:15:26.636 to found a political party, the Federalists. His collaborator on 0:15:26.676 --> 0:15:30.756 the Federalist Papers, Madison, went on to found the other 0:15:30.836 --> 0:15:35.036 political party on the other side, the Republicans, the Democratic Republicans. 0:15:35.436 --> 0:15:38.476 So they went from being close collaborators and friends in 0:15:38.476 --> 0:15:41.236 producing the Federalist Papers to being brutal political enemies. And 0:15:41.276 --> 0:15:44.396 because they didn't anticipate the rise of political parties, they 0:15:44.476 --> 0:15:49.116 underestimated how partisan the impeachment process would be. That said 0:15:50.156 --> 0:15:52.596 Hamilton himself, you know, in the Federalist Papers was trying 0:15:52.636 --> 0:15:54.476 to be a propagandist. He was trying to get people 0:15:54.516 --> 0:15:58.876 to make the Constitution be ratified, and so he depicted 0:15:58.996 --> 0:16:05.556 the probabilities that people would act selflessly in ways that 0:16:05.636 --> 0:16:10.476 seemed to me knowingly on his part overstated. Given how 0:16:10.516 --> 0:16:14.116 deeply Hamilton was worried about the danger of demagogues, a 0:16:14.236 --> 0:16:17.436 danger he speaks about in the Federalist Papers, he must 0:16:17.476 --> 0:16:20.916 have known that there was a real, real possibility of 0:16:21.196 --> 0:16:26.156 politicians demagoguing an impeachment. So when he makes those arguments 0:16:26.596 --> 0:16:29.196 and acknowledges the counter arguments, it may be this is 0:16:29.196 --> 0:16:31.636 reading him against the grain. It may be that he's 0:16:31.796 --> 0:16:35.436 actually aware that impeachment may not be that effective a 0:16:35.436 --> 0:16:38.036 tool in the long run, but for the purposes of 0:16:38.076 --> 0:16:40.596 his polemical purpose is saying, oh, this is going to work. Great, 0:16:41.756 --> 0:16:43.676 that's very interesting. No, I mean, I think the place 0:16:43.716 --> 0:16:47.956 where i'd be a little skeptical of that defense of 0:16:48.316 --> 0:16:53.076 Hamilton's full foresight of the problem is around political parties. 0:16:53.116 --> 0:16:56.956 The founders, including Hamilton Madison. I mean, I feel funny 0:16:57.316 --> 0:17:00.316 talking to the biographer of Madison about this, because you know, 0:17:00.316 --> 0:17:03.196 you've forgot more about this today than I'll ever know. 0:17:03.636 --> 0:17:06.236 But you know, they're always talking about faction, by which 0:17:06.276 --> 0:17:08.996 they mean political parties, which they think are this kind 0:17:08.996 --> 0:17:15.436 of corrupting factor in democratic government, and they were just wrong. 0:17:15.476 --> 0:17:18.476 I mean, I don't think you know, their democracies all 0:17:18.516 --> 0:17:22.196 seemed to develop political parties the fundamental feature, and they 0:17:22.236 --> 0:17:24.556 felt we could do without them, and not only could 0:17:24.556 --> 0:17:26.396 we do without them, that we wouldn't have a healthy 0:17:26.396 --> 0:17:28.756 democracy unless we did without them. As you say, they 0:17:28.796 --> 0:17:32.316 both immediately founded political parties themselves. It was just a 0:17:32.476 --> 0:17:34.916 kind of fundamental misreading. But I think if you read 0:17:35.196 --> 0:17:39.836 something like The Federalist sixty five, it's shot through with 0:17:39.916 --> 0:17:46.276 this idea of individuals making decisions without fundamental reference to 0:17:46.356 --> 0:17:50.116 being part of political parties. You're totally right. And I 0:17:50.116 --> 0:17:51.916 guess what I'm saying, and I'm making this up as 0:17:51.956 --> 0:17:56.036 I go, so you know, take it for what it's worth. Madison, 0:17:56.196 --> 0:17:58.676 I know, did believe those things. It was totally sincere 0:17:58.676 --> 0:18:01.876 on his part, and the failure to anticipate political parties 0:18:01.876 --> 0:18:05.636 was based on his intellectual I would even say hubrist 0:18:05.636 --> 0:18:07.436 at that moment, which is that he thought he'd designed 0:18:07.476 --> 0:18:11.916 a constitution that would fix the problem political parties. Hamilton, however, 0:18:12.076 --> 0:18:14.756 was not a naive person. Ever, there was nothing naive 0:18:14.796 --> 0:18:18.236 about Hamilton. And although he's talking the Madisonian language and 0:18:18.236 --> 0:18:21.316 the Federalist papers, including in sixty five, what I'm spec 0:18:21.356 --> 0:18:24.196 thinking about is that maybe Hamilton didn't believe it as 0:18:24.236 --> 0:18:27.116 much as Madison definitely did believe it even when Hamilton 0:18:27.516 --> 0:18:30.396 was saying it. So I wonder if he wasn't already 0:18:30.436 --> 0:18:33.716 anticipating something like that and already thinking that there probably 0:18:33.756 --> 0:18:37.756 would be political parties, even as he joined these documents 0:18:37.796 --> 0:18:39.876 declaring that they designed a constitution that would fix the 0:18:39.916 --> 0:18:43.436 problem with political parties. Yeah, that's interesting. Well, let me 0:18:43.436 --> 0:18:45.556 ask you about something else I've been thinking about, which 0:18:45.636 --> 0:18:49.196 is whether there was a fundamental failure on the part 0:18:49.236 --> 0:18:55.156 of the founders in thinking about transitions presidential leadership transitions, 0:18:55.676 --> 0:18:59.036 because two things that they did not include in the 0:18:59.076 --> 0:19:03.796 constitution were any kind of term limits for the head 0:19:03.796 --> 0:19:08.596 of government and I think in the impeachment trial, what 0:19:08.796 --> 0:19:12.916 Jamie you're asking characterized so effectively as this January problem, 0:19:13.316 --> 0:19:17.076 which Mitch McConnell ended up taking advantage of by saying, no, 0:19:17.276 --> 0:19:20.276 we won't impeach him while he's still in office, and 0:19:20.316 --> 0:19:22.436 then it once he wakes he's out of office. He 0:19:22.516 --> 0:19:24.796 believes that there's this loophole, which I don't think is 0:19:25.276 --> 0:19:31.676 supported by constitutional history. However, there is a lack of 0:19:31.916 --> 0:19:37.196 clear procedure and lack of anticipation about this really particular 0:19:37.236 --> 0:19:40.436 problem that seems to arise almost everywhere in the world 0:19:40.476 --> 0:19:44.316 all the time, which is leaders not wanting to leave office, 0:19:44.396 --> 0:19:48.316 including when they lose free and fair elections. You know, 0:19:48.396 --> 0:19:50.356 it may be that those things are related to each other. 0:19:50.396 --> 0:19:53.156 I mean, the Framers didn't have term limits because they 0:19:53.156 --> 0:19:55.156 didn't think that the president was going to step down 0:19:55.276 --> 0:19:59.716 after only a few terms. Hamilton basically wanted an elected monarchy, 0:19:59.756 --> 0:20:02.196 and he wanted Washington to be the first elected monarch. 0:20:02.956 --> 0:20:05.756 And it was only when Washington did step down after 0:20:05.836 --> 0:20:09.476 two terms that this tradition emerged, only subsequently broke by 0:20:09.516 --> 0:20:13.356 FDR and then subsequently put into a constitutional amendment. So 0:20:13.476 --> 0:20:15.356 the fact that they didn't have trem limits. Wasn't a 0:20:15.796 --> 0:20:17.316 you know, it wasn't a bug for them. It was 0:20:17.356 --> 0:20:20.596 a feature. They wanted a strong executive and those of 0:20:20.636 --> 0:20:23.116 them who, including Hamilton, who really wanted something that looked 0:20:23.156 --> 0:20:27.836 more like a monarchic presidency, appreciated that fact. And they 0:20:27.916 --> 0:20:31.396 weren't that worried about the transitions problem. I think insofar 0:20:31.436 --> 0:20:33.636 as they were had Washington in mind. They figured he'd 0:20:33.636 --> 0:20:36.156 always be reelected, and they figured that people who were 0:20:36.196 --> 0:20:39.716 not elected would step down, and that did happen right Adams, 0:20:39.796 --> 0:20:41.756 right out of the box. You know, the second president 0:20:42.436 --> 0:20:44.916 loses an election to Jefferson, and he does step down. 0:20:45.996 --> 0:20:47.956 Another part of it, I think was that they had 0:20:47.996 --> 0:20:51.356 an image of what a gentleman of the late eighteenth 0:20:51.396 --> 0:20:55.436 century cared most about, and that was his reputation. And 0:20:55.516 --> 0:20:59.356 they knew that loss of reputation could be ruinous, and 0:20:59.436 --> 0:21:01.876 doing the kinds of things that Donald Trump did would 0:21:01.876 --> 0:21:04.236 have been reputation destroying. I mean, these were people who 0:21:04.276 --> 0:21:07.716 fought and in Hamilton's case, died for their reputation. I mean, 0:21:07.756 --> 0:21:10.516 people who will fight a duel are people who really 0:21:10.596 --> 0:21:14.196 value reputation above everything else, including possibly you know, life 0:21:14.196 --> 0:21:16.156 and limb so I think that might be why they 0:21:16.156 --> 0:21:19.036 were not as worried about people refusing to step down. Well, 0:21:19.116 --> 0:21:22.916 is it fair to say that while they were obsessed 0:21:23.036 --> 0:21:26.676 fully focused on the problem of demagogues and politics, they 0:21:26.756 --> 0:21:31.156 didn't anticipate the narrower problem of what do you do 0:21:31.236 --> 0:21:34.596 when you've got the demagogue in office and you're trying 0:21:34.636 --> 0:21:38.476 to transition away you trying to get the demagogue to yield. 0:21:38.636 --> 0:21:40.596 I mean, that is the problem we ran into with 0:21:40.876 --> 0:21:44.156 Donald Trump. The fox was in the Henhouse. The demagogue 0:21:44.196 --> 0:21:49.276 was elected president in a flukish way, but legitimately and 0:21:49.556 --> 0:21:53.196 like a demagogue, tried as hard as he possibly could 0:21:53.276 --> 0:21:55.916 not to yield power. And I think historians may look 0:21:55.956 --> 0:21:59.596 back on this period and think we came a lot 0:21:59.676 --> 0:22:04.796 closer than we ever anticipated coming to not having a 0:22:04.836 --> 0:22:09.756 successful democratic transition. In the twenty twenty election, we'll be 0:22:09.836 --> 0:22:22.156 right back. I think your point, Jacob about the Framers 0:22:22.196 --> 0:22:24.316 not really thinking about what to do if a demagogue 0:22:24.356 --> 0:22:27.476 did get elected is profound and I think pretty original, 0:22:28.036 --> 0:22:29.476 because they thought a lot about how to keep him 0:22:29.476 --> 0:22:30.836 out office, but not a lot about what to do 0:22:30.876 --> 0:22:33.956 once he was in office. I think there's a separate 0:22:33.996 --> 0:22:37.316 question of how close we were, and it's one worth exploring. 0:22:37.356 --> 0:22:40.916 I think had the Defense Department had officials who were 0:22:40.956 --> 0:22:45.436 prepared to listen to Trump and deploy troops in his 0:22:45.876 --> 0:22:48.396 defense of his attempt to gain power, that would have 0:22:48.396 --> 0:22:52.756 been an actual coup deeta, not a rag tag mob 0:22:52.956 --> 0:22:55.676 invading the capitol, which was a kind of a fantasy 0:22:55.676 --> 0:22:57.596 of a coup deta rather than the reality of it. 0:22:57.956 --> 0:22:59.996 And I think it's an interesting question of how close 0:23:00.036 --> 0:23:02.556 we came to that, you know, the fact that it 0:23:02.556 --> 0:23:04.756 turns out that there was someone in the Department of Justice, 0:23:04.756 --> 0:23:07.596 a mid level official, but nevertheless an official Department of 0:23:07.596 --> 0:23:11.236 Justice who went to Trump said make me attorney general 0:23:11.396 --> 0:23:15.396 and I will order Georgia to retract its electoral College votes. 0:23:15.436 --> 0:23:18.756 It's pretty astonishing. And if something like that had happened 0:23:19.276 --> 0:23:21.916 in the Defense Department, that really could have led you 0:23:21.996 --> 0:23:23.556 in a coup like direction. So in that sense, I 0:23:23.596 --> 0:23:25.436 think history will bear out your point that it could 0:23:25.476 --> 0:23:27.836 have gone worse. At the same time, it didn't happen 0:23:27.876 --> 0:23:30.196 in those ways, despite the fact that we had Donald Trump, 0:23:30.676 --> 0:23:33.756 and so that could be a potential potential argument on 0:23:33.796 --> 0:23:37.396 the other On the other side, yeah, I think it's 0:23:37.636 --> 0:23:43.836