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Speaker 1: Pushkin. Hello, Deep background listeners. Noah Feldman here. I've recently

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Speaker 1: started making regular appearances on Axios Today, the daily news

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Speaker 1: podcast from Axios. I always have great conversations with host

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Speaker 1: Nila Budo, and I hope I'm able to shed light

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Speaker 1: on the legal issues that are making headlines. Here's my

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Speaker 1: latest interview on Axios Today. If you like getting smarter faster,

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Speaker 1: you can subscribe or listen wherever you get your podcasts.

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Speaker 1: I've made it a daily habit, and I hope you

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Speaker 1: will too. Lots of people have questions about the constitutionality

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Speaker 1: of whether or not it's legal and if there's any

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Speaker 1: historical precedent to try former President Donald Trump for impeachment

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Speaker 1: since he's no longer in office. I thought I would

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Speaker 1: pose this question to Axios Today's resident legal scholar, Harvard

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Speaker 1: Law professor Noah Feldman. Hi, Noah, Hi, Niland. Nice to

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Speaker 1: be promoted to being a resident at Axios. Feels good. Good.

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Speaker 1: There is a legal precedent, and for this we have

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Speaker 1: to go back to Ulysses S. Grant Secretary of War

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Speaker 1: William Bellknap. What did we learn from his case? Bellknapp,

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Speaker 1: who had actually been a Civil War hero but was

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Speaker 1: probably not so well suited to become Secretary of War,

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Speaker 1: had through his wife, been getting unlawful profits from somebody

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Speaker 1: he made an appointment for, and that was figured out

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Speaker 1: towards the end of the Grant administration. Minutes before he

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Speaker 1: was about to be impeached, on the floor of the House,

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Speaker 1: he ran, literally, you can't make the stef up to

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Speaker 1: the White House to resign, in the hopes that he

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Speaker 1: would avoid the embarrassment of being impeached. But they impeached

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Speaker 1: him anyway. After he'd already resigned. The House impeached him,

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Speaker 1: and it went to a trial in the Senate. A

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Speaker 1: bunch of senators claimed, not a majority, but a big

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Speaker 1: number claimed, much like a bunch of Republicans have already

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Speaker 1: claimed in the Senate, that you couldn't try him because

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Speaker 1: he was already out of office. A majority said, as

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Speaker 1: indeed was also said with respect to Trump, that they

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Speaker 1: could go far with the trial, and ultimately bell Napp

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Speaker 1: was not convicted by the Senate, with a lot of

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Speaker 1: the people voting not to convict him, saying that their

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Speaker 1: reason was not that they thought he wasn't guilty, but

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Speaker 1: that they thought it shouldn't be possible to do it.

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Speaker 1: So what you take away from all this is that

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Speaker 1: has someone been impeached late and then tried in the Senate? Yes?

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Speaker 1: Was that person convicted? No? Who is it up to?

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Speaker 1: You guessed it? It's up to the Senate. The Senate

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Speaker 1: gets to make up its own mind on this question.

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Speaker 1: But who in the Senate? Like the essential question here

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Speaker 1: is can a private citizen be impeached? Right? Like, that's

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Speaker 1: what the constitutionality goes to. Well, that's the way the

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Speaker 1: Trump people would phrase it. I think the House managers

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Speaker 1: will phrase it the other way. They'll say, can the

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Speaker 1: President of the United States who has been impeached while

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Speaker 1: he was still in office be tried by the Senate

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Speaker 1: when he's out of office when there remains the possibility

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Speaker 1: that after conviction he could be barred from running for

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Speaker 1: office again, Namely, there is a live issue. So that's

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Speaker 1: how the House manager would put it. And the answer

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Speaker 1: is we're never going to know the definitive answer to this.

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Speaker 1: We're just going to have a lot of debate around it,

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Speaker 1: and then we're going to get a vote on whether

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Speaker 1: to convict Donald Trump or not to convict him. And

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Speaker 1: it'll still take a two thirds vote to convict him,

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Speaker 1: and if he's not convicted, some people will say, you see,

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Speaker 1: it was unconstitutional. Other people say it was completely constitutional.

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Speaker 1: But we didn't have two thirds of the Senate. So

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Speaker 1: I love the story of Balnat because he hired the

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Speaker 1: best lawyers money could find, and at the time those

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Speaker 1: lawyers argued it wasn't constitutional that he be impeached. Do

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Speaker 1: you think that's the case that former President Trump's lawyers

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Speaker 1: will also be making. We know for sure they'll make

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Speaker 1: it because it's already been made in the court of

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Speaker 1: public opinion, and because forty five senators already said they

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Speaker 1: agreed with it, and that's enough people to block the

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Speaker 1: president from being removed from office in this instance, not removed,

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Speaker 1: but rather blocked from running again. So you know for

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Speaker 1: sure that that argument will be made. And as I said,

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Speaker 1: the argument can be made. It's been made in the past.

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Speaker 1: It hasn't necessarily prevailed in the past, but some senators

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Speaker 1: agreed with it. My own view, if you ask me

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Speaker 1: about the fundamental underlying constitutional question, which I admit you didn't,

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Speaker 1: is that on the whole, there's no reason to think

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Speaker 1: you can't go forward when he's out of office. The

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Speaker 1: Constitution doesn't say you can't. And what's more, of the

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Speaker 1: founding generation was very familiar with impeachments that took place

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Speaker 1: after people left office. In fact, that was their normal

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Speaker 1: form of impeachment that they inherited from Great Britain, and

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Speaker 1: they did it all the time. So I don't think

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Speaker 1: there's any historical reason that it shouldn't be possible to

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Speaker 1: do it. And if you say, well, it's just symbolic,

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Speaker 1: it's not just symbolic, because they're still at stake the

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Speaker 1: possibility that Trump could be barred from running for office again.

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Speaker 1: And if the framers had wanted to eliminate that possibility,

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Speaker 1: they probably wouldn't have created a mechanism where the president

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Speaker 1: could actually be blocked from running again, or anyone who

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Speaker 1: is impeached could be blocked from running again. Why is

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Speaker 1: it clear that the power to determine this arrest in

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Speaker 1: the Senate. Because the Constitution puts the power to impeach

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Speaker 1: in the House of Representatives explicitly, and it puts the

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Speaker 1: power to convict in the Senate explicitly. And under Supreme

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Speaker 1: Court precedent, where the Institution assigns a specific role or

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Speaker 1: function to a branch of government. The courts will not

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Speaker 1: step in and second guess that branch, because the courts

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Speaker 1: see this as what's called a political question, a question

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Speaker 1: specifically given to one of the political branches of government,

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Speaker 1: in this case, to Congress, and so the Supreme Court

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Speaker 1: will not step into rule on the constitutionality of this.

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Speaker 1: It will be left to the Senate, and the Senate's

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Speaker 1: word will be final. As a constitutional law scholar, what

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Speaker 1: are you watching for in the trial next week? What

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Speaker 1: are you listening for in the arguments? I think there

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Speaker 1: are three main defenses that are likely to be raised,

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Speaker 1: and the first is the one we've already mentioned, the

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Speaker 1: idea that even if Trump were guilty, it doesn't matter

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Speaker 1: because it's unconstitutional to put them on trial. That argument,

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Speaker 1: as I said, I think is wrong, but it's a

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Speaker 1: nice convenient excuse if you're a Republican center and you

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Speaker 1: want to vote to acquit the president, the former president,

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Speaker 1: and you don't want to go on the record as

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Speaker 1: saying you think that the attack on the Capitol was fine,

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Speaker 1: and so it's a very appealing argument, so unquestionably it

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Speaker 1: will be made. The second argument is an argument based

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Speaker 1: on free speech, and the first Amendment, and this argument

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Speaker 1: I think is wrong, but it's an argument that does

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Speaker 1: have some value to it, and it goes like this.

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Speaker 1: It says, under criminal law, if you charge someone with

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Speaker 1: incitement to violence, which is what the article of impeachment

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Speaker 1: charges the president with, we have a controlling case called

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Speaker 1: Brandenburg against Ohio that states the legal standard, and that

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Speaker 1: legal standard says that to be convicted of incitement, your

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Speaker 1: words have to be directed at inciting imminent lawless action

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Speaker 1: and have to have been likely actually to do so.

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Speaker 1: Now the latter part is taken care of because the

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Speaker 1: president's words were followed by a criminal act, a series

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Speaker 1: of criminal acts in the Capitol. So the key is

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Speaker 1: were the president's words directed to inciting violence? And someone

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Speaker 1: could argue under the standard, if the president were criminally charged,

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Speaker 1: that he didn't explicitly say that the cap should be breached.

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Speaker 1: Nor is it possible to prove definitively beyond a reasonable

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Speaker 1: doubt in an ordinary criminal court that he intended to

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Speaker 1: produce imminent lawless action. And if that's all true, it's

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Speaker 1: a lot of ifs, But if that's all true, then

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Speaker 1: you probably couldn't convict Donald Trump in a criminal court

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Speaker 1: of incitement. You're talking about a criminal court, but this

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Speaker 1: is the Senate, So how does this work. This is

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Speaker 1: not like a criminal court because it's the Senate that

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Speaker 1: is doing mose correct, And you're getting now to why

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Speaker 1: I think this argument is wrong, But I'm still ventriloquizing

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Speaker 1: what Trump's lawyers would say. What they'll say is, well,

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Speaker 1: a high crime or misdemeanor is supposed to be a

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Speaker 1: crime under the law. No, that's wrong, and I so

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Speaker 1: testified at the last impeachment round. But there are some

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Speaker 1: tiny number of professors who have claimed such a thing.

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Speaker 1: So they'll claim that. They'll say, well, it has to

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Speaker 1: have been a crime, and this wasn't a crime, or

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Speaker 1: their fallback option, slightly less embarrassing would be to say, well,

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Speaker 1: the First Amends and is in the constitution, so when

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Speaker 1: we decide whether to remove someone from office or to

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Speaker 1: punish them for incitement, we ought to be informed by

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Speaker 1: that First Amendment standard as interpreted by the courts. Not

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Speaker 1: that we're bound by it, but it'd be nice to

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Speaker 1: think about it. And if that's the case, they'll say,

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Speaker 1: you shouldn't convict Donald Trump. That's a defense that, while

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Speaker 1: again I think is wrong, is a defense that I

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Speaker 1: can imagine being made with a straight face by a lawyer.

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Speaker 1: It's not the kind of thing that would get you disbarred.

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Speaker 1: And then, last, but not least, you should watch for

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Speaker 1: whether they're actually willing to come out and say, as

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Speaker 1: people did in defense of the president in the last

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Speaker 1: impeachment trial, that what he said in his speeches and

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Speaker 1: what he did was fine. You know, remember that Donald

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Speaker 1: Trump said that his call with the president of Ukraine

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Speaker 1: was perfect. I imagine somebody will get up there and

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Speaker 1: say that the speech that Donald Trump gave on January

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Speaker 1: sixth was perfect, that there was nothing wrong with it.

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Speaker 1: There's nothing wrong with telling people, you know, that they

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Speaker 1: should you pursue resistance to the government of the United States,

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Speaker 1: because after all, the election was, after all, really really stolen.

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Speaker 1: And you know, the lawyers may make an argument to

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Speaker 1: that effect, and there may be some constituency in the

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Speaker 1: country and in the Senate that is responsive to that

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Speaker 1: kind of extreme he didn't do anything wrong argument. I

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Speaker 1: wonder how that works illegally if you have house managers

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Speaker 1: making the argument that he incited insurrection, and then you

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Speaker 1: have Republicans and President Trump's attorney saying, well, he didn't

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Speaker 1: incite insurrection because he won the election. It was stolen

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Speaker 1: from him. How does that even reconcile legally when it

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Speaker 1: sounds like they're in two different planets. Well, that happens

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Speaker 1: a lot in cases of legal dispute and legal argument.

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Speaker 1: If you think about it this way, the Trump lawyers

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Speaker 1: arguments are the classic defense lawyers arguments. One, this whole

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Speaker 1: trial is unconstitutional. Two, even if he did the things

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Speaker 1: you said, they were protected by the Constitution and the

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Speaker 1: First Amendment. Three, he never did them. After all, he

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Speaker 1: never actually incited anybody. And for he's actually the president

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Speaker 1: of the United States. I mean, they have to be

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Speaker 1: a little careful about saying that because if he's the

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Speaker 1: president of United States, he can be put on trial

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Speaker 1: in the Senate. So they're gonna have to not overstate

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Speaker 1: that case too strongly. But you know that's not uncommon.

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Speaker 1: You know. The best thing for a defense attorney to

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Speaker 1: do is suggest to the jury in this case, the Senate,

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Speaker 1: that we are living in a completely different universe than

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Speaker 1: the universe occupied by the prosecution. That's garden variety of

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Speaker 1: criminal defense, and it's something that you reasonably could expect

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Speaker 1: Trumps lawyers to do too. How much of this, though,

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Speaker 1: do you think, is about proving a case versus making

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Speaker 1: a political case. It's ninety nine percent about making the

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Speaker 1: political case. At this point. The question is whether Trump's

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Speaker 1: lawyers think that the best way to make their political

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Speaker 1: case is also to make the legal case. My long

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Speaker 1: term prediction is that after the Senate does not convict Trump,

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Speaker 1: which seems like the most likely outcome by a big stretch,

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Speaker 1: that Trump will then want to go to the public

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Speaker 1: and say, you know what, I was indicted in the

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Speaker 1: articles of impeachment and I was acquit it. So everyone

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Speaker 1: can move along. There's now been an official finding of

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Speaker 1: the United States Senate, the relevant body, that says I

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Speaker 1: didn't do anything wrong. I have nothing to do with

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Speaker 1: what took place on January sixth. You know He's going

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Speaker 1: to say that, and that will be his pivot point

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Speaker 1: for the beginning of his process of rehabilitation. And so,

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Speaker 1: in my mind, the strategic value of the trial from

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Speaker 1: Trump's perspective is to make sure that he is not convicted,

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Speaker 1: which shouldn't be too hard from his perspective, and then

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Speaker 1: use that as the pivot. So the politics will come

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Speaker 1: from the Senate vote that says he is not removed.

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Speaker 1: You can find Noah Feldman on Deep Background, which is

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Speaker 1: a podcast he hosts. Thanks Noah, thanks for having me.