WEBVTT - Noah Feldman on Axios Today About the Impeachment Trial 0:00:15.396 --> 0:00:22.036 Pushkin. Hello, Deep background listeners. Noah Feldman here. I've recently 0:00:22.036 --> 0:00:25.876 started making regular appearances on Axios Today, the daily news 0:00:25.876 --> 0:00:29.876 podcast from Axios. I always have great conversations with host 0:00:29.996 --> 0:00:32.796 Nila Budo, and I hope I'm able to shed light 0:00:32.876 --> 0:00:35.636 on the legal issues that are making headlines. Here's my 0:00:35.716 --> 0:00:39.476 latest interview on Axios Today. If you like getting smarter faster, 0:00:39.796 --> 0:00:42.476 you can subscribe or listen wherever you get your podcasts. 0:00:42.836 --> 0:00:44.676 I've made it a daily habit, and I hope you 0:00:44.716 --> 0:00:48.956 will too. Lots of people have questions about the constitutionality 0:00:49.036 --> 0:00:51.556 of whether or not it's legal and if there's any 0:00:51.596 --> 0:00:55.396 historical precedent to try former President Donald Trump for impeachment 0:00:55.516 --> 0:00:58.116 since he's no longer in office. I thought I would 0:00:58.116 --> 0:01:01.476 pose this question to Axios Today's resident legal scholar, Harvard 0:01:01.516 --> 0:01:05.156 Law professor Noah Feldman. Hi, Noah, Hi, Niland. Nice to 0:01:05.196 --> 0:01:08.236 be promoted to being a resident at Axios. Feels good. Good. 0:01:09.356 --> 0:01:11.796 There is a legal precedent, and for this we have 0:01:11.876 --> 0:01:16.036 to go back to Ulysses S. Grant Secretary of War 0:01:16.836 --> 0:01:21.836 William Bellknap. What did we learn from his case? Bellknapp, 0:01:21.916 --> 0:01:23.876 who had actually been a Civil War hero but was 0:01:23.876 --> 0:01:26.116 probably not so well suited to become Secretary of War, 0:01:26.796 --> 0:01:30.316 had through his wife, been getting unlawful profits from somebody 0:01:30.316 --> 0:01:33.596 he made an appointment for, and that was figured out 0:01:33.676 --> 0:01:37.516 towards the end of the Grant administration. Minutes before he 0:01:37.596 --> 0:01:40.036 was about to be impeached, on the floor of the House, 0:01:40.276 --> 0:01:42.876 he ran, literally, you can't make the stef up to 0:01:42.916 --> 0:01:45.236 the White House to resign, in the hopes that he 0:01:45.276 --> 0:01:48.876 would avoid the embarrassment of being impeached. But they impeached 0:01:48.956 --> 0:01:52.316 him anyway. After he'd already resigned. The House impeached him, 0:01:52.596 --> 0:01:55.316 and it went to a trial in the Senate. A 0:01:55.436 --> 0:01:58.116 bunch of senators claimed, not a majority, but a big 0:01:58.196 --> 0:02:01.396 number claimed, much like a bunch of Republicans have already 0:02:01.436 --> 0:02:04.996 claimed in the Senate, that you couldn't try him because 0:02:05.156 --> 0:02:08.476 he was already out of office. A majority said, as 0:02:08.516 --> 0:02:11.076 indeed was also said with respect to Trump, that they 0:02:11.076 --> 0:02:13.836 could go far with the trial, and ultimately bell Napp 0:02:13.916 --> 0:02:16.236 was not convicted by the Senate, with a lot of 0:02:16.276 --> 0:02:18.796 the people voting not to convict him, saying that their 0:02:18.836 --> 0:02:20.876 reason was not that they thought he wasn't guilty, but 0:02:20.956 --> 0:02:23.036 that they thought it shouldn't be possible to do it. 0:02:23.116 --> 0:02:24.916 So what you take away from all this is that 0:02:25.276 --> 0:02:28.356 has someone been impeached late and then tried in the Senate? Yes? 0:02:28.796 --> 0:02:31.636 Was that person convicted? No? Who is it up to? 0:02:32.156 --> 0:02:34.556 You guessed it? It's up to the Senate. The Senate 0:02:34.596 --> 0:02:37.116 gets to make up its own mind on this question. 0:02:37.476 --> 0:02:40.116 But who in the Senate? Like the essential question here 0:02:40.236 --> 0:02:43.636 is can a private citizen be impeached? Right? Like, that's 0:02:43.996 --> 0:02:48.076 what the constitutionality goes to. Well, that's the way the 0:02:48.076 --> 0:02:50.676 Trump people would phrase it. I think the House managers 0:02:50.676 --> 0:02:52.476 will phrase it the other way. They'll say, can the 0:02:52.516 --> 0:02:54.676 President of the United States who has been impeached while 0:02:54.676 --> 0:02:57.156 he was still in office be tried by the Senate 0:02:57.156 --> 0:03:00.676 when he's out of office when there remains the possibility 0:03:00.996 --> 0:03:05.116 that after conviction he could be barred from running for 0:03:05.196 --> 0:03:08.396 office again, Namely, there is a live issue. So that's 0:03:08.396 --> 0:03:11.396 how the House manager would put it. And the answer 0:03:11.436 --> 0:03:13.316 is we're never going to know the definitive answer to this. 0:03:13.356 --> 0:03:14.916 We're just going to have a lot of debate around it, 0:03:14.916 --> 0:03:16.356 and then we're going to get a vote on whether 0:03:16.436 --> 0:03:18.836 to convict Donald Trump or not to convict him. And 0:03:18.876 --> 0:03:21.436 it'll still take a two thirds vote to convict him, 0:03:21.476 --> 0:03:23.996 and if he's not convicted, some people will say, you see, 0:03:23.996 --> 0:03:26.716 it was unconstitutional. Other people say it was completely constitutional. 0:03:26.796 --> 0:03:29.076 But we didn't have two thirds of the Senate. So 0:03:29.156 --> 0:03:31.156 I love the story of Balnat because he hired the 0:03:31.156 --> 0:03:34.556 best lawyers money could find, and at the time those 0:03:34.676 --> 0:03:39.556 lawyers argued it wasn't constitutional that he be impeached. Do 0:03:39.596 --> 0:03:42.596 you think that's the case that former President Trump's lawyers 0:03:42.636 --> 0:03:45.436 will also be making. We know for sure they'll make 0:03:45.476 --> 0:03:47.116 it because it's already been made in the court of 0:03:47.116 --> 0:03:50.596 public opinion, and because forty five senators already said they 0:03:50.636 --> 0:03:53.156 agreed with it, and that's enough people to block the 0:03:53.196 --> 0:03:56.956 president from being removed from office in this instance, not removed, 0:03:56.956 --> 0:04:00.196 but rather blocked from running again. So you know for 0:04:00.396 --> 0:04:02.996 sure that that argument will be made. And as I said, 0:04:03.156 --> 0:04:05.396 the argument can be made. It's been made in the past. 0:04:05.476 --> 0:04:08.236 It hasn't necessarily prevailed in the past, but some senators 0:04:08.236 --> 0:04:10.636 agreed with it. My own view, if you ask me 0:04:10.676 --> 0:04:13.716 about the fundamental underlying constitutional question, which I admit you didn't, 0:04:14.316 --> 0:04:16.796 is that on the whole, there's no reason to think 0:04:16.836 --> 0:04:18.516 you can't go forward when he's out of office. The 0:04:18.516 --> 0:04:21.356 Constitution doesn't say you can't. And what's more, of the 0:04:21.356 --> 0:04:24.796 founding generation was very familiar with impeachments that took place 0:04:24.836 --> 0:04:26.916 after people left office. In fact, that was their normal 0:04:26.996 --> 0:04:29.516 form of impeachment that they inherited from Great Britain, and 0:04:29.516 --> 0:04:32.636 they did it all the time. So I don't think 0:04:32.676 --> 0:04:35.116 there's any historical reason that it shouldn't be possible to 0:04:35.116 --> 0:04:37.236 do it. And if you say, well, it's just symbolic, 0:04:37.356 --> 0:04:40.156 it's not just symbolic, because they're still at stake the 0:04:40.196 --> 0:04:42.716 possibility that Trump could be barred from running for office again. 0:04:43.076 --> 0:04:46.436 And if the framers had wanted to eliminate that possibility, 0:04:46.796 --> 0:04:49.276 they probably wouldn't have created a mechanism where the president 0:04:49.436 --> 0:04:51.476 could actually be blocked from running again, or anyone who 0:04:51.516 --> 0:04:53.556 is impeached could be blocked from running again. Why is 0:04:53.556 --> 0:04:55.676 it clear that the power to determine this arrest in 0:04:55.716 --> 0:05:00.716 the Senate. Because the Constitution puts the power to impeach 0:05:00.796 --> 0:05:03.476 in the House of Representatives explicitly, and it puts the 0:05:03.476 --> 0:05:07.236 power to convict in the Senate explicitly. And under Supreme 0:05:07.236 --> 0:05:11.436 Court precedent, where the Institution assigns a specific role or 0:05:11.436 --> 0:05:14.036 function to a branch of government. The courts will not 0:05:14.276 --> 0:05:18.596 step in and second guess that branch, because the courts 0:05:18.596 --> 0:05:20.916 see this as what's called a political question, a question 0:05:21.156 --> 0:05:23.636 specifically given to one of the political branches of government, 0:05:23.636 --> 0:05:26.836 in this case, to Congress, and so the Supreme Court 0:05:26.876 --> 0:05:30.196 will not step into rule on the constitutionality of this. 0:05:30.356 --> 0:05:32.036 It will be left to the Senate, and the Senate's 0:05:32.036 --> 0:05:35.956 word will be final. As a constitutional law scholar, what 0:05:35.996 --> 0:05:38.596 are you watching for in the trial next week? What 0:05:38.636 --> 0:05:42.556 are you listening for in the arguments? I think there 0:05:42.596 --> 0:05:45.796 are three main defenses that are likely to be raised, 0:05:46.276 --> 0:05:48.836 and the first is the one we've already mentioned, the 0:05:48.916 --> 0:05:51.636 idea that even if Trump were guilty, it doesn't matter 0:05:51.676 --> 0:05:54.676 because it's unconstitutional to put them on trial. That argument, 0:05:54.716 --> 0:05:56.676 as I said, I think is wrong, but it's a 0:05:56.796 --> 0:05:59.556 nice convenient excuse if you're a Republican center and you 0:05:59.556 --> 0:06:02.436 want to vote to acquit the president, the former president, 0:06:02.916 --> 0:06:04.756 and you don't want to go on the record as 0:06:04.756 --> 0:06:06.836 saying you think that the attack on the Capitol was fine, 0:06:07.356 --> 0:06:10.516 and so it's a very appealing argument, so unquestionably it 0:06:10.556 --> 0:06:13.996 will be made. The second argument is an argument based 0:06:13.996 --> 0:06:17.316 on free speech, and the first Amendment, and this argument 0:06:17.556 --> 0:06:20.196 I think is wrong, but it's an argument that does 0:06:20.276 --> 0:06:23.396 have some value to it, and it goes like this. 0:06:24.156 --> 0:06:28.076 It says, under criminal law, if you charge someone with 0:06:28.196 --> 0:06:31.516 incitement to violence, which is what the article of impeachment 0:06:31.596 --> 0:06:35.156 charges the president with, we have a controlling case called 0:06:35.316 --> 0:06:38.396 Brandenburg against Ohio that states the legal standard, and that 0:06:38.516 --> 0:06:42.196 legal standard says that to be convicted of incitement, your 0:06:42.236 --> 0:06:46.916 words have to be directed at inciting imminent lawless action 0:06:47.556 --> 0:06:50.356 and have to have been likely actually to do so. 0:06:50.716 --> 0:06:52.356 Now the latter part is taken care of because the 0:06:52.396 --> 0:06:55.556 president's words were followed by a criminal act, a series 0:06:55.556 --> 0:06:57.676 of criminal acts in the Capitol. So the key is 0:06:57.876 --> 0:07:01.996 were the president's words directed to inciting violence? And someone 0:07:01.996 --> 0:07:05.116 could argue under the standard, if the president were criminally charged, 0:07:05.596 --> 0:07:09.996 that he didn't explicitly say that the cap should be breached. 0:07:10.356 --> 0:07:13.756 Nor is it possible to prove definitively beyond a reasonable 0:07:13.836 --> 0:07:18.356 doubt in an ordinary criminal court that he intended to 0:07:18.396 --> 0:07:21.716 produce imminent lawless action. And if that's all true, it's 0:07:21.756 --> 0:07:23.716 a lot of ifs, But if that's all true, then 0:07:23.756 --> 0:07:26.916 you probably couldn't convict Donald Trump in a criminal court 0:07:26.956 --> 0:07:29.916 of incitement. You're talking about a criminal court, but this 0:07:29.996 --> 0:07:32.716 is the Senate, So how does this work. This is 0:07:32.756 --> 0:07:35.156 not like a criminal court because it's the Senate that 0:07:35.276 --> 0:07:38.276 is doing mose correct, And you're getting now to why 0:07:38.316 --> 0:07:41.676 I think this argument is wrong, But I'm still ventriloquizing 0:07:41.716 --> 0:07:45.716 what Trump's lawyers would say. What they'll say is, well, 0:07:45.836 --> 0:07:48.396 a high crime or misdemeanor is supposed to be a 0:07:48.436 --> 0:07:52.036 crime under the law. No, that's wrong, and I so 0:07:52.236 --> 0:07:55.596 testified at the last impeachment round. But there are some 0:07:55.876 --> 0:07:58.556 tiny number of professors who have claimed such a thing. 0:07:58.596 --> 0:08:00.956 So they'll claim that. They'll say, well, it has to 0:08:00.956 --> 0:08:02.956 have been a crime, and this wasn't a crime, or 0:08:03.076 --> 0:08:08.236 their fallback option, slightly less embarrassing would be to say, well, 0:08:08.476 --> 0:08:11.476 the First Amends and is in the constitution, so when 0:08:11.636 --> 0:08:15.916 we decide whether to remove someone from office or to 0:08:15.956 --> 0:08:20.436 punish them for incitement, we ought to be informed by 0:08:20.436 --> 0:08:24.156 that First Amendment standard as interpreted by the courts. Not 0:08:24.276 --> 0:08:26.036 that we're bound by it, but it'd be nice to 0:08:26.036 --> 0:08:27.836 think about it. And if that's the case, they'll say, 0:08:28.156 --> 0:08:31.356 you shouldn't convict Donald Trump. That's a defense that, while 0:08:31.396 --> 0:08:33.516 again I think is wrong, is a defense that I 0:08:33.516 --> 0:08:36.356 can imagine being made with a straight face by a lawyer. 0:08:36.356 --> 0:08:38.236 It's not the kind of thing that would get you disbarred. 0:08:38.876 --> 0:08:40.956 And then, last, but not least, you should watch for 0:08:41.076 --> 0:08:44.556 whether they're actually willing to come out and say, as 0:08:44.716 --> 0:08:46.916 people did in defense of the president in the last 0:08:46.916 --> 0:08:49.676 impeachment trial, that what he said in his speeches and 0:08:49.716 --> 0:08:52.556 what he did was fine. You know, remember that Donald 0:08:52.556 --> 0:08:54.516 Trump said that his call with the president of Ukraine 0:08:54.556 --> 0:08:57.356 was perfect. I imagine somebody will get up there and 0:08:57.396 --> 0:08:59.596 say that the speech that Donald Trump gave on January 0:08:59.636 --> 0:09:02.436 sixth was perfect, that there was nothing wrong with it. 0:09:02.636 --> 0:09:05.116 There's nothing wrong with telling people, you know, that they 0:09:05.156 --> 0:09:09.876 should you pursue resistance to the government of the United States, 0:09:09.916 --> 0:09:12.996 because after all, the election was, after all, really really stolen. 0:09:13.556 --> 0:09:16.836 And you know, the lawyers may make an argument to 0:09:16.836 --> 0:09:19.596 that effect, and there may be some constituency in the 0:09:19.636 --> 0:09:23.076 country and in the Senate that is responsive to that 0:09:23.196 --> 0:09:26.236 kind of extreme he didn't do anything wrong argument. I 0:09:26.276 --> 0:09:30.876 wonder how that works illegally if you have house managers 0:09:31.116 --> 0:09:37.076 making the argument that he incited insurrection, and then you 0:09:37.196 --> 0:09:42.316 have Republicans and President Trump's attorney saying, well, he didn't 0:09:42.316 --> 0:09:45.836 incite insurrection because he won the election. It was stolen 0:09:45.916 --> 0:09:48.636 from him. How does that even reconcile legally when it 0:09:48.676 --> 0:09:51.956 sounds like they're in two different planets. Well, that happens 0:09:51.956 --> 0:09:55.276 a lot in cases of legal dispute and legal argument. 0:09:55.396 --> 0:09:57.276 If you think about it this way, the Trump lawyers 0:09:57.316 --> 0:10:01.076 arguments are the classic defense lawyers arguments. One, this whole 0:10:01.076 --> 0:10:04.396 trial is unconstitutional. Two, even if he did the things 0:10:04.396 --> 0:10:06.276 you said, they were protected by the Constitution and the 0:10:06.316 --> 0:10:08.836 First Amendment. Three, he never did them. After all, he 0:10:08.876 --> 0:10:12.076 never actually incited anybody. And for he's actually the president 0:10:12.076 --> 0:10:13.036 of the United States. I mean, they have to be 0:10:13.036 --> 0:10:14.596 a little careful about saying that because if he's the 0:10:14.596 --> 0:10:16.916 president of United States, he can be put on trial 0:10:17.236 --> 0:10:19.076 in the Senate. So they're gonna have to not overstate 0:10:19.116 --> 0:10:21.676 that case too strongly. But you know that's not uncommon. 0:10:21.756 --> 0:10:23.716 You know. The best thing for a defense attorney to 0:10:23.756 --> 0:10:26.276 do is suggest to the jury in this case, the Senate, 0:10:26.356 --> 0:10:28.916 that we are living in a completely different universe than 0:10:28.956 --> 0:10:32.196 the universe occupied by the prosecution. That's garden variety of 0:10:32.196 --> 0:10:34.916 criminal defense, and it's something that you reasonably could expect 0:10:34.956 --> 0:10:37.076 Trumps lawyers to do too. How much of this, though, 0:10:37.116 --> 0:10:39.476 do you think, is about proving a case versus making 0:10:39.476 --> 0:10:43.236 a political case. It's ninety nine percent about making the 0:10:43.236 --> 0:10:46.796 political case. At this point. The question is whether Trump's 0:10:46.836 --> 0:10:49.076 lawyers think that the best way to make their political 0:10:49.116 --> 0:10:53.276 case is also to make the legal case. My long 0:10:53.436 --> 0:10:57.956 term prediction is that after the Senate does not convict Trump, 0:10:57.996 --> 0:11:00.636 which seems like the most likely outcome by a big stretch, 0:11:01.316 --> 0:11:03.436 that Trump will then want to go to the public 0:11:03.556 --> 0:11:07.556 and say, you know what, I was indicted in the 0:11:07.636 --> 0:11:10.436 articles of impeachment and I was acquit it. So everyone 0:11:10.516 --> 0:11:13.116 can move along. There's now been an official finding of 0:11:13.116 --> 0:11:15.556 the United States Senate, the relevant body, that says I 0:11:15.596 --> 0:11:17.756 didn't do anything wrong. I have nothing to do with 0:11:17.756 --> 0:11:20.236 what took place on January sixth. You know He's going 0:11:20.316 --> 0:11:22.956 to say that, and that will be his pivot point 0:11:22.996 --> 0:11:26.316 for the beginning of his process of rehabilitation. And so, 0:11:26.556 --> 0:11:28.796 in my mind, the strategic value of the trial from 0:11:28.836 --> 0:11:33.076 Trump's perspective is to make sure that he is not convicted, 0:11:33.116 --> 0:11:35.916 which shouldn't be too hard from his perspective, and then 0:11:36.116 --> 0:11:39.116 use that as the pivot. So the politics will come 0:11:39.556 --> 0:11:42.556 from the Senate vote that says he is not removed. 0:11:43.756 --> 0:11:46.636 You can find Noah Feldman on Deep Background, which is 0:11:46.676 --> 0:11:50.116 a podcast he hosts. Thanks Noah, thanks for having me.