1 00:00:15,396 --> 00:00:22,236 Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show 2 00:00:22,276 --> 00:00:25,476 Speaker 1: where we explore the stories behind the stories in the news. 3 00:00:26,036 --> 00:00:29,596 Speaker 1: I'm Noah Feldman. If you're joining us for the first time, welcome. 4 00:00:30,116 --> 00:00:32,436 Speaker 1: If you've missed any of our earlier episodes, which used 5 00:00:32,476 --> 00:00:34,836 Speaker 1: to be behind a paywall, you can now get them 6 00:00:34,876 --> 00:00:38,836 Speaker 1: for free exactly where you found this one. A bit 7 00:00:38,836 --> 00:00:42,396 Speaker 1: about me. I teach constitutional law at Harvard. I love 8 00:00:42,436 --> 00:00:46,476 Speaker 1: a well tailored suit, and I had a pretty eventful 9 00:00:46,556 --> 00:00:49,796 Speaker 1: winter break. Do you swear or affirm, under penalty of 10 00:00:49,836 --> 00:00:53,316 Speaker 1: perjury that the testimony you're about to give is true 11 00:00:53,316 --> 00:00:56,156 Speaker 1: and correct to the best of your knowledge, information, and belief. 12 00:00:56,556 --> 00:00:59,396 Speaker 1: So help you God. This past December, I was an 13 00:00:59,396 --> 00:01:02,556 Speaker 1: expert witness called by the Democrats to testify at the 14 00:01:02,596 --> 00:01:06,756 Speaker 1: impeachment inquiry and the House of Representatives into President Donald Trump. 15 00:01:07,356 --> 00:01:10,236 Speaker 1: To be honest with you, it was extremely nerve racking. 16 00:01:10,676 --> 00:01:12,916 Speaker 1: My job is to study and to teach the Constitution 17 00:01:13,036 --> 00:01:16,556 Speaker 1: from its origins until the president. I'm here today to 18 00:01:16,676 --> 00:01:21,356 Speaker 1: describe three things. Why the framers of our Constitution included 19 00:01:21,396 --> 00:01:24,796 Speaker 1: a provision for the impeachment of the president. What that 20 00:01:24,876 --> 00:01:28,876 Speaker 1: provision providing for impeachment for high crimes and misdemeanors means, 21 00:01:29,476 --> 00:01:32,676 Speaker 1: and last, how it applies to the question before you 22 00:01:32,756 --> 00:01:35,956 Speaker 1: and for the American people, whether President Trump has committed 23 00:01:35,996 --> 00:01:40,196 Speaker 1: impeachable offenses under the Constitution. The other expert witnesses called 24 00:01:40,236 --> 00:01:43,636 Speaker 1: by the Democrats were Pamela Carlin, a law professor at Stanford. 25 00:01:43,996 --> 00:01:48,516 Speaker 1: When President Trump invited, indeed demanded, foreign involvement in our 26 00:01:48,596 --> 00:01:52,156 Speaker 1: upcoming election, he struck at the very heart of what 27 00:01:52,356 --> 00:01:55,796 Speaker 1: makes this a republic to which we pledge allegiance. And 28 00:01:55,956 --> 00:01:58,716 Speaker 1: Michael Gerhart, a law professor at the University of North 29 00:01:58,716 --> 00:02:02,316 Speaker 1: Carolina at Chapel Hill. If what we're talking about is 30 00:02:02,396 --> 00:02:06,956 Speaker 1: not impeachable, then nothing is impeachable. I recently got the 31 00:02:07,036 --> 00:02:09,996 Speaker 1: chance to talk to Michael Gerhart about that day and 32 00:02:10,196 --> 00:02:14,076 Speaker 1: all that has happened since I was, unfortunately recovering from 33 00:02:14,076 --> 00:02:17,956 Speaker 1: a slight cold. Michael, thank you so much for joining me. 34 00:02:18,356 --> 00:02:20,876 Speaker 1: We've spoken on the phone, but we actually haven't seen 35 00:02:20,956 --> 00:02:25,276 Speaker 1: each other since December fourth, when we both had the 36 00:02:25,356 --> 00:02:30,596 Speaker 1: opportunity and maybe dubious honor of testifying at the House 37 00:02:30,676 --> 00:02:34,476 Speaker 1: Judiciary Committees hearing on impeachment. How you've been doing since then? 38 00:02:35,436 --> 00:02:39,236 Speaker 1: It's been busy teaching classes, and also trying to be 39 00:02:39,316 --> 00:02:41,956 Speaker 1: part of the national conversation on a very important subject. 40 00:02:42,676 --> 00:02:44,076 Speaker 1: What I would love for us to do in this 41 00:02:44,116 --> 00:02:48,876 Speaker 1: conversation is open up for listeners some of the backstory 42 00:02:48,956 --> 00:02:52,196 Speaker 1: and the back scenes of what we experienced that day, 43 00:02:52,716 --> 00:02:55,756 Speaker 1: how we prepared for it, and also the sort of 44 00:02:55,796 --> 00:02:59,836 Speaker 1: bigger picture of consequences of what's been going on. So 45 00:02:59,956 --> 00:03:02,196 Speaker 1: maybe the way to start is I had never done 46 00:03:02,236 --> 00:03:04,396 Speaker 1: this before, so it was all a surprise to me. 47 00:03:04,836 --> 00:03:08,756 Speaker 1: But you had done this before twenty years previously, when 48 00:03:08,796 --> 00:03:10,876 Speaker 1: they were a group of law professors, I think twenty 49 00:03:10,876 --> 00:03:14,116 Speaker 1: one in total, who testified about Bill Clinton's impeachment to 50 00:03:14,156 --> 00:03:16,836 Speaker 1: the House Judiciary Committee. And not only were you one 51 00:03:16,876 --> 00:03:19,356 Speaker 1: of them, but you were also the only one who 52 00:03:19,396 --> 00:03:22,396 Speaker 1: was jointly put forward by the Republicans and the Democrats. 53 00:03:22,796 --> 00:03:25,356 Speaker 1: So take us back, if you will, twenty years and 54 00:03:25,436 --> 00:03:27,476 Speaker 1: tell us how that happened. You know, nowadays it's almost 55 00:03:27,516 --> 00:03:30,036 Speaker 1: inconceivable to imagine there being somebody who was acceptable to 56 00:03:30,076 --> 00:03:32,156 Speaker 1: both sides. Well, twenty years seems a long time ago. 57 00:03:32,196 --> 00:03:35,356 Speaker 1: It's going to seem even longer when we put together 58 00:03:35,436 --> 00:03:38,596 Speaker 1: what was happening back then, it'll seem completely alien to us. 59 00:03:39,396 --> 00:03:42,476 Speaker 1: So I had spent a fair bit of my academic 60 00:03:42,516 --> 00:03:46,236 Speaker 1: career studying and writing about impeachment, also testifying and consulting 61 00:03:46,236 --> 00:03:48,796 Speaker 1: with members of Congress. That was all known by the 62 00:03:48,836 --> 00:03:51,676 Speaker 1: time we got to nineteen ninety eight, And there was 63 00:03:51,676 --> 00:03:53,916 Speaker 1: a special moment for me in nineteen ninety eight when 64 00:03:54,156 --> 00:03:57,516 Speaker 1: Jim Leech or Republican David Skaggs Democrat called me up 65 00:03:57,516 --> 00:03:58,836 Speaker 1: on the phone and said, would you come talk to 66 00:03:58,916 --> 00:04:01,836 Speaker 1: us in Washington? Generally, if members of Congress want to 67 00:04:01,876 --> 00:04:04,236 Speaker 1: talk to me about something, I think that's a great honor. 68 00:04:04,356 --> 00:04:07,356 Speaker 1: Night went and they said to me, well, what we'd 69 00:04:07,356 --> 00:04:08,996 Speaker 1: like you to do after you talk to us right 70 00:04:09,196 --> 00:04:11,836 Speaker 1: now is go speak to the entire House of Representatives. 71 00:04:12,436 --> 00:04:15,716 Speaker 1: I didn't know that coming into that moment, and they 72 00:04:15,756 --> 00:04:18,316 Speaker 1: had arranged like they wanted to speak to the House 73 00:04:18,396 --> 00:04:22,556 Speaker 1: right then, Yes, right then. Um, so I thought, well, 74 00:04:22,716 --> 00:04:24,076 Speaker 1: this is going to be a good test whether or 75 00:04:24,076 --> 00:04:26,836 Speaker 1: not I know the subject matter. And so then we 76 00:04:26,876 --> 00:04:29,756 Speaker 1: walked over to the House and I had to get 77 00:04:29,756 --> 00:04:32,236 Speaker 1: special permission to walk onto the floor of the House 78 00:04:32,916 --> 00:04:35,876 Speaker 1: and then behind closed doors with no staff, no press 79 00:04:35,956 --> 00:04:37,836 Speaker 1: or anything. I then talked to the entire House of 80 00:04:37,916 --> 00:04:41,396 Speaker 1: Representatives about impeachment. It's been about two hours doing it. 81 00:04:41,716 --> 00:04:45,956 Speaker 1: No no cameras, nothing, nothing, just nothing. It was all 82 00:04:46,076 --> 00:04:47,556 Speaker 1: Is there a written record of your coup? Don't think 83 00:04:47,556 --> 00:04:49,756 Speaker 1: there's a written record. I think it was also amazing. 84 00:04:49,756 --> 00:04:52,076 Speaker 1: You had a confidential conversation with four hundred and thirty 85 00:04:52,076 --> 00:04:54,596 Speaker 1: five people. Hard to the biggest lecture of my life 86 00:04:54,676 --> 00:04:56,596 Speaker 1: or one of the biggest lectures, but it was. I 87 00:04:56,916 --> 00:04:58,836 Speaker 1: tried to design more as a conversation, and it was 88 00:04:58,836 --> 00:05:03,036 Speaker 1: a very congenial, collegial conversation. At the end of it, 89 00:05:03,116 --> 00:05:05,956 Speaker 1: Charles Kennedy, Republican, Bobby Scott, a Democrat who happened to 90 00:05:05,996 --> 00:05:08,676 Speaker 1: be my representative, came up to me and said, well, 91 00:05:08,716 --> 00:05:10,516 Speaker 1: if you have have a hearing on this, would you come, 92 00:05:10,836 --> 00:05:13,556 Speaker 1: And I said, well, think sure, I'd be honored. And 93 00:05:13,596 --> 00:05:16,996 Speaker 1: then that hearing to which you just alluded happened a 94 00:05:16,996 --> 00:05:19,076 Speaker 1: few weeks later, where I was then brought in by 95 00:05:19,076 --> 00:05:23,076 Speaker 1: both the Republicans and Democrats to testifize one of the experts, 96 00:05:23,276 --> 00:05:26,876 Speaker 1: one of the many experts, including Alan Dershowitz, on the 97 00:05:26,956 --> 00:05:30,796 Speaker 1: question of whether or not President Clinton's alleged misconduct rose 98 00:05:30,836 --> 00:05:33,316 Speaker 1: to the level of being an impeachable offense and what 99 00:05:33,356 --> 00:05:38,916 Speaker 1: did you say. What I talked about was basically the 100 00:05:38,996 --> 00:05:40,996 Speaker 1: law of impeachment. I tried to kind of lay out 101 00:05:41,036 --> 00:05:43,516 Speaker 1: the things we knew that I thought were clear, and 102 00:05:43,556 --> 00:05:46,396 Speaker 1: then kind of talked about some things that maybe unsettled, 103 00:05:47,116 --> 00:05:48,836 Speaker 1: and said, here's what we know about them. Here are 104 00:05:48,836 --> 00:05:51,796 Speaker 1: the arguments on both sides, and kind of walked everybody 105 00:05:51,796 --> 00:05:54,076 Speaker 1: through that and then got questions. But there was no 106 00:05:54,156 --> 00:05:56,476 Speaker 1: personal attack. It was always very much you know, in 107 00:05:56,476 --> 00:05:58,676 Speaker 1: this footnote you said this, but now today you're saying 108 00:05:58,716 --> 00:06:01,516 Speaker 1: that fair I can try and answer that. Did they 109 00:06:01,516 --> 00:06:03,156 Speaker 1: actually give you a chance to answer it? I say 110 00:06:03,196 --> 00:06:05,436 Speaker 1: that in light of our experiences this time around. They 111 00:06:05,476 --> 00:06:07,316 Speaker 1: asked a question and then they actually let you answer it. 112 00:06:07,316 --> 00:06:08,596 Speaker 1: It's like, you know, as you said, it sounds like 113 00:06:08,596 --> 00:06:11,196 Speaker 1: the Middle Age, that's right. Yeah, So when we had 114 00:06:11,236 --> 00:06:15,036 Speaker 1: our hearing, there was no chance to answer it, or 115 00:06:15,076 --> 00:06:16,796 Speaker 1: at least we were given maybe a second and then 116 00:06:16,836 --> 00:06:18,836 Speaker 1: that was about it. But yes, they would then give 117 00:06:18,876 --> 00:06:22,596 Speaker 1: me a chance to answer it, and they appeared to 118 00:06:22,636 --> 00:06:25,116 Speaker 1: be listening, and it was really more of a conversation 119 00:06:26,036 --> 00:06:29,236 Speaker 1: than twenty years later it would be. It's sort of 120 00:06:29,236 --> 00:06:31,396 Speaker 1: fascinating on many levels, but one of the reasons it's 121 00:06:31,396 --> 00:06:35,356 Speaker 1: so fascinating is that most people at the time identified 122 00:06:35,436 --> 00:06:38,116 Speaker 1: the impeachment of Bill Clinton, that moment as a high 123 00:06:38,156 --> 00:06:41,516 Speaker 1: point in partisanship, the most partisan moment that people could 124 00:06:41,516 --> 00:06:43,996 Speaker 1: remember in the United States and more than a century. 125 00:06:44,436 --> 00:06:46,756 Speaker 1: And I think that was actually a fair assessment in 126 00:06:46,876 --> 00:06:50,116 Speaker 1: historical terms. And now twenty years later, it sounds almost 127 00:06:50,116 --> 00:06:54,916 Speaker 1: like a model of bipartisan cordiality and collegiality, even if 128 00:06:54,956 --> 00:06:58,596 Speaker 1: they voted along party lines. Let me ask you a question, Michael, So, 129 00:06:58,796 --> 00:07:00,916 Speaker 1: the reason you found yourself in that extraordinary position in 130 00:07:00,916 --> 00:07:04,756 Speaker 1: the Clinton impeachment is that you were and remain the 131 00:07:05,036 --> 00:07:07,796 Speaker 1: leading expert law professor on the subject of impeachment. Your 132 00:07:08,196 --> 00:07:10,916 Speaker 1: Guide to the Impeachment Process book, you know, has come 133 00:07:10,916 --> 00:07:13,836 Speaker 1: out and I think three editions. Now, why in the world, 134 00:07:13,916 --> 00:07:16,676 Speaker 1: as a young law professor did you get interested in 135 00:07:16,716 --> 00:07:19,836 Speaker 1: the impeachment as the topic? It was not a hot topic, 136 00:07:20,316 --> 00:07:22,236 Speaker 1: you know when they lated eighties, when you must have 137 00:07:22,276 --> 00:07:23,956 Speaker 1: started diving into it, or the middle ladies, when you 138 00:07:23,996 --> 00:07:27,636 Speaker 1: started diving into it. Why did you choose the subject? Well, 139 00:07:27,676 --> 00:07:31,076 Speaker 1: that's a good question. I grew up Jewish and Alabama 140 00:07:31,116 --> 00:07:34,276 Speaker 1: in the nineteen sixties that that a lot comes with that. 141 00:07:34,276 --> 00:07:39,076 Speaker 1: That's a big sentence where in Alabama mobile Okay, got it, 142 00:07:39,436 --> 00:07:43,316 Speaker 1: And so I was my entire childhood was sort of 143 00:07:43,316 --> 00:07:46,036 Speaker 1: shaped and defined by the Civil Rights movement. At the 144 00:07:46,036 --> 00:07:48,796 Speaker 1: tail end of that civil rights movement was of course Watergate. 145 00:07:49,356 --> 00:07:53,716 Speaker 1: So like many people of my generation, I watched Watergate. 146 00:07:53,756 --> 00:07:56,836 Speaker 1: I was kind of thought it was an incredible moment 147 00:07:56,876 --> 00:07:59,716 Speaker 1: to see the Congress sort of investigating the president and 148 00:07:59,716 --> 00:08:03,236 Speaker 1: eventually the president resigned, and that that stuck with me. 149 00:08:03,276 --> 00:08:05,676 Speaker 1: That was something that I felt the Civil Rights movement 150 00:08:05,676 --> 00:08:07,796 Speaker 1: and the Watergate had in common a respect for the 151 00:08:07,876 --> 00:08:10,716 Speaker 1: rule of law. I had in common the idea that 152 00:08:10,756 --> 00:08:12,676 Speaker 1: law could bring order to chaos, and so that was 153 00:08:12,796 --> 00:08:15,276 Speaker 1: very appealing to me. I had an interest in the 154 00:08:15,356 --> 00:08:17,916 Speaker 1: law as a result. And I think one thing that's 155 00:08:17,916 --> 00:08:20,596 Speaker 1: common about impeachment and importance for me is there not 156 00:08:20,636 --> 00:08:22,796 Speaker 1: just academic areas of interest. There are areas where I 157 00:08:22,836 --> 00:08:25,236 Speaker 1: feel like, as a lawyer and law professor, I have 158 00:08:25,276 --> 00:08:28,396 Speaker 1: a duty to try to speak truth to power and 159 00:08:28,436 --> 00:08:30,716 Speaker 1: to be a part of the process which enriches my 160 00:08:30,796 --> 00:08:32,396 Speaker 1: understanding and that I hope I can bring that to 161 00:08:32,436 --> 00:08:36,196 Speaker 1: my students. So let's fast forward then to now. So 162 00:08:36,276 --> 00:08:38,636 Speaker 1: When I got the call in November saying, you know, 163 00:08:39,276 --> 00:08:42,796 Speaker 1: might you be open to testifying? I took a long, 164 00:08:42,876 --> 00:08:45,716 Speaker 1: deep breath, I said yes. And the next thing I 165 00:08:45,716 --> 00:08:47,196 Speaker 1: did as soon as I got off the phone is 166 00:08:47,236 --> 00:08:53,596 Speaker 1: I dove into the books and I massively read every 167 00:08:53,716 --> 00:08:57,276 Speaker 1: letter that I could find on impeachment. And I was 168 00:08:57,596 --> 00:09:01,396 Speaker 1: the whole time struck by just how much ground I 169 00:09:01,436 --> 00:09:04,756 Speaker 1: had to cover. Because although I teach constitutional law like 170 00:09:04,836 --> 00:09:09,316 Speaker 1: you do, I added a constitutional law casebook, impeachment appears 171 00:09:09,356 --> 00:09:14,116 Speaker 1: on like one page of a twenty five hundred page casebook. Now, 172 00:09:14,276 --> 00:09:16,836 Speaker 1: you must have been in a completely different situation because 173 00:09:16,996 --> 00:09:19,756 Speaker 1: you literally wrote the book. Well, I should say you're 174 00:09:19,756 --> 00:09:22,396 Speaker 1: a wonderfully quick study, and of course you've mastered it 175 00:09:22,516 --> 00:09:25,876 Speaker 1: very well. Um, I don't know how. I don't know 176 00:09:25,876 --> 00:09:28,316 Speaker 1: how quick it was, but it was hard. Now, well, 177 00:09:28,476 --> 00:09:32,996 Speaker 1: in constutional time, it was quick, Yeah, exactly. I got 178 00:09:32,996 --> 00:09:35,516 Speaker 1: the call. Actually, I think my call came the morning 179 00:09:35,516 --> 00:09:38,796 Speaker 1: of Thanksgiving. Um, you know, I knew this hearing was 180 00:09:38,836 --> 00:09:42,076 Speaker 1: coming up. I didn't have any I just I knew 181 00:09:42,076 --> 00:09:43,556 Speaker 1: it was going to be important hearing, But I didn't 182 00:09:43,596 --> 00:09:47,036 Speaker 1: necessarily know or think that I would be any part 183 00:09:47,036 --> 00:09:49,076 Speaker 1: of it. I still would be I would care about 184 00:09:49,116 --> 00:09:51,916 Speaker 1: it deeply, so I was following it. But then I 185 00:09:51,956 --> 00:09:54,476 Speaker 1: did get a call Thursday morning saying, Okay, would you 186 00:09:54,516 --> 00:09:58,636 Speaker 1: be willing to come testify? And then once I realized, okay, 187 00:09:58,676 --> 00:10:00,996 Speaker 1: I am going to do this, UM, I did a 188 00:10:01,036 --> 00:10:03,316 Speaker 1: little bit of study, but a lot of what I 189 00:10:03,436 --> 00:10:05,236 Speaker 1: tried to do was sort of sit back and think 190 00:10:05,276 --> 00:10:09,836 Speaker 1: about what's important for people to know and tried to 191 00:10:09,876 --> 00:10:12,116 Speaker 1: pull together what I thought would be a very helpful 192 00:10:12,236 --> 00:10:17,596 Speaker 1: narrative on how impeachment applies to the current situation. And 193 00:10:17,636 --> 00:10:20,716 Speaker 1: so that became my focus. And one thing the course 194 00:10:20,756 --> 00:10:24,236 Speaker 1: that stood out for me was how one of the 195 00:10:24,276 --> 00:10:28,236 Speaker 1: critical things we see even now it was apparent back then, 196 00:10:28,596 --> 00:10:31,036 Speaker 1: but we hear this and everything the president's lawyer is saying. 197 00:10:31,236 --> 00:10:32,956 Speaker 1: I think we see this and everything the president does, 198 00:10:33,316 --> 00:10:36,036 Speaker 1: and that is that all of that has in common 199 00:10:36,196 --> 00:10:40,636 Speaker 1: the effort to make the president a monarch, perhaps even 200 00:10:40,756 --> 00:10:42,716 Speaker 1: one could go so far as to say a tyrant, 201 00:10:43,396 --> 00:10:46,316 Speaker 1: and that is not consistent with our Constitution in any way, 202 00:10:46,316 --> 00:10:49,756 Speaker 1: shape or form. So having come to that conclusion, which 203 00:10:49,796 --> 00:10:51,836 Speaker 1: I don't think was a hard one to reach, I 204 00:10:51,956 --> 00:10:54,556 Speaker 1: then sort of built a case around did you sense 205 00:10:54,596 --> 00:10:56,236 Speaker 1: before going in, Did you know this was going to 206 00:10:56,276 --> 00:10:59,236 Speaker 1: be the kind of partisan battle royale that it sort 207 00:10:59,236 --> 00:11:02,676 Speaker 1: of turned into. And were you comfortable inwardly with the 208 00:11:02,756 --> 00:11:05,476 Speaker 1: idea that you were going to be able to say, look, 209 00:11:06,116 --> 00:11:08,276 Speaker 1: according to the facts as they've been released in the 210 00:11:08,316 --> 00:11:11,356 Speaker 1: House or discover in the House, if they're true, then 211 00:11:11,716 --> 00:11:14,356 Speaker 1: the president deserves to be impeached under the Constitution, which 212 00:11:14,396 --> 00:11:16,436 Speaker 1: is obviously what we both did say. But were you 213 00:11:16,676 --> 00:11:19,236 Speaker 1: did you have any trepidation about that? Well, it's a 214 00:11:19,236 --> 00:11:23,676 Speaker 1: good question I had already once I realized I guess 215 00:11:23,676 --> 00:11:26,436 Speaker 1: I was going to be there. One of the other 216 00:11:26,876 --> 00:11:29,996 Speaker 1: first things that occurs to me is to understand the venue, 217 00:11:30,556 --> 00:11:33,596 Speaker 1: to understand the forum. And I was fairly fortunate in 218 00:11:33,596 --> 00:11:36,036 Speaker 1: that I already testified in front of the Judiciary Committee 219 00:11:36,036 --> 00:11:39,116 Speaker 1: on July twelfth basically about the Mother Report. So at 220 00:11:39,116 --> 00:11:42,356 Speaker 1: that hearing in July twelfth, people came at after me 221 00:11:42,476 --> 00:11:47,436 Speaker 1: rather personally, and I somehow survived, And I knew that 222 00:11:47,636 --> 00:11:49,796 Speaker 1: this other hearing was going to be even more vicious. 223 00:11:50,396 --> 00:11:55,116 Speaker 1: So my instinct was in that circumstance to dial it down, 224 00:11:55,876 --> 00:11:58,596 Speaker 1: not to kind of meet them at the same level 225 00:11:58,676 --> 00:12:02,796 Speaker 1: of yelling and screaming and personal attacks, but to try 226 00:12:02,836 --> 00:12:07,036 Speaker 1: and sort of lower the temperature and make sure that 227 00:12:07,076 --> 00:12:08,916 Speaker 1: whatever I was saying, and of course you were doing 228 00:12:08,956 --> 00:12:11,196 Speaker 1: this as well, but to make sure everything I was 229 00:12:11,236 --> 00:12:14,716 Speaker 1: saying was firmly grounded in the law. So if you 230 00:12:14,876 --> 00:12:16,836 Speaker 1: if you know what you're saying is firmly grounded in 231 00:12:16,956 --> 00:12:19,396 Speaker 1: law and it's backed up, you can have a lot 232 00:12:19,396 --> 00:12:22,636 Speaker 1: of confidence when people come at you and attack you 233 00:12:22,876 --> 00:12:25,356 Speaker 1: because you know the facts and you know the law, 234 00:12:25,796 --> 00:12:29,076 Speaker 1: and you can then move forward on that basis. If 235 00:12:29,116 --> 00:12:30,756 Speaker 1: you don't have those things on your side, I think, 236 00:12:30,796 --> 00:12:33,556 Speaker 1: like the White House laws currently, you make things up. 237 00:12:33,796 --> 00:12:36,316 Speaker 1: You know, you engage in a lot of inconsistent statements. 238 00:12:37,236 --> 00:12:40,076 Speaker 1: But I felt the law was on our side. Let's 239 00:12:40,076 --> 00:12:43,036 Speaker 1: talk a little bit about style in the presentation, because 240 00:12:43,036 --> 00:12:47,036 Speaker 1: as you said, you were extremely calm throughout. I would 241 00:12:47,036 --> 00:12:48,556 Speaker 1: say you were the calmest of the three of us, 242 00:12:48,596 --> 00:12:52,276 Speaker 1: you and me and Pam Carlin. Was that fully your plan? 243 00:12:52,396 --> 00:12:54,636 Speaker 1: Because I have to say, as I walked into that 244 00:12:54,716 --> 00:12:56,796 Speaker 1: room with all of the cameras, I mean, I knew 245 00:12:56,796 --> 00:12:58,196 Speaker 1: the cameras would be there. I knew it would be 246 00:12:58,236 --> 00:13:01,716 Speaker 1: surrounded by you know, photographers. I knew they would melt 247 00:13:01,756 --> 00:13:03,876 Speaker 1: away like a magic curtain, and behind them would be 248 00:13:03,916 --> 00:13:06,796 Speaker 1: a whole walls worth of Judiciary Committee members. So I 249 00:13:06,876 --> 00:13:09,516 Speaker 1: knew it in theory, but I kept on thinking of 250 00:13:09,556 --> 00:13:13,596 Speaker 1: that expression of Mike Tyson's where he said everyone has 251 00:13:13,596 --> 00:13:16,516 Speaker 1: a plan until they get punched in the face. And 252 00:13:16,676 --> 00:13:18,036 Speaker 1: you know, that's sort of what it felt like to me. 253 00:13:18,436 --> 00:13:21,836 Speaker 1: I walked in there with a plan, and I then 254 00:13:21,996 --> 00:13:24,396 Speaker 1: felt just by the reality of it, it was like 255 00:13:24,476 --> 00:13:26,756 Speaker 1: a punch in the face. And then I'm more or 256 00:13:26,836 --> 00:13:30,236 Speaker 1: less adapted on the fly, and I think I changed 257 00:13:30,756 --> 00:13:34,196 Speaker 1: the tone of my presentation and the tone of my 258 00:13:34,276 --> 00:13:39,516 Speaker 1: answers based on the energy in the room. And I 259 00:13:39,556 --> 00:13:44,476 Speaker 1: think I had the inward experience of feeling, Okay, you're 260 00:13:44,516 --> 00:13:47,756 Speaker 1: about to open your mouth and say in substance that 261 00:13:47,836 --> 00:13:50,356 Speaker 1: the presence of the United States is guilty of high 262 00:13:50,396 --> 00:13:54,516 Speaker 1: crimes and misdemeanors. And logically speaking, although it's the choice 263 00:13:54,556 --> 00:13:57,636 Speaker 1: of the House ought to be impeached, that's really a 264 00:13:57,636 --> 00:14:02,476 Speaker 1: big deal. And it's not a time for half measures. 265 00:14:02,516 --> 00:14:05,196 Speaker 1: It's not a time to say it as a on 266 00:14:05,236 --> 00:14:06,996 Speaker 1: the one hand, or on the other hand, I think 267 00:14:07,036 --> 00:14:09,756 Speaker 1: if I thought to myself, if I don't say it, definitively, 268 00:14:10,316 --> 00:14:13,436 Speaker 1: clearly and bluntly, and again and again and again, the 269 00:14:13,516 --> 00:14:15,756 Speaker 1: message really might not get through. And I don't think 270 00:14:15,836 --> 00:14:19,196 Speaker 1: I really got that until I was sitting in the chair. 271 00:14:20,156 --> 00:14:22,196 Speaker 1: Were you able to more or less? Was the strategy 272 00:14:22,196 --> 00:14:24,676 Speaker 1: that you followed, the kind of the calm, rational one. 273 00:14:25,756 --> 00:14:27,716 Speaker 1: Was that a strategy that that was the one you 274 00:14:27,756 --> 00:14:33,956 Speaker 1: had going in. I'm not sure I had a well 275 00:14:34,036 --> 00:14:37,196 Speaker 1: defined strategy going in other than kind of what I've said, 276 00:14:37,276 --> 00:14:40,636 Speaker 1: other than I guess what is my typical temperament and disposition. 277 00:14:41,796 --> 00:14:46,156 Speaker 1: And so what I felt at the time was I've 278 00:14:46,196 --> 00:14:49,196 Speaker 1: got to get a feel for this room so very 279 00:14:49,236 --> 00:14:53,196 Speaker 1: much like what you were saying, and that would help 280 00:14:53,316 --> 00:14:56,516 Speaker 1: you know you know this very well. I think one 281 00:14:56,756 --> 00:14:59,596 Speaker 1: problem for a lot of lawyers, particularly young lawyers, is 282 00:14:59,756 --> 00:15:03,116 Speaker 1: they don't think about the forum. They don't think about 283 00:15:03,196 --> 00:15:05,716 Speaker 1: the venue. They would argue the same way in a 284 00:15:05,876 --> 00:15:08,636 Speaker 1: trial quarter as they would in congress or somewhere else. 285 00:15:09,556 --> 00:15:11,796 Speaker 1: That's not a good move. You've got to be aware 286 00:15:11,796 --> 00:15:14,476 Speaker 1: of who's listening, and you've got to be aware of 287 00:15:14,476 --> 00:15:17,796 Speaker 1: your audience. And so part of what I was I 288 00:15:17,836 --> 00:15:19,276 Speaker 1: felt I had to do was, Okay, I got to 289 00:15:19,316 --> 00:15:21,916 Speaker 1: get a feel for that so many respects. The hardest 290 00:15:21,996 --> 00:15:25,516 Speaker 1: moment is that first minute. Thank you, mister Chairman, ranking member, 291 00:15:25,596 --> 00:15:28,636 Speaker 1: or other distinguished members of the committee. It's an honor 292 00:15:28,636 --> 00:15:31,756 Speaker 1: and a privilege to join the other distinguished witnesses to 293 00:15:31,796 --> 00:15:35,476 Speaker 1: discuss a matter of grave concern to our country and 294 00:15:35,516 --> 00:15:39,996 Speaker 1: to our constitution. Because this House, the People's House, has 295 00:15:39,996 --> 00:15:43,196 Speaker 1: the sole power of impeachment. There is no better forum 296 00:15:43,596 --> 00:15:46,796 Speaker 1: to discuss the constitutional standard for impeachment and whether that 297 00:15:46,916 --> 00:15:49,156 Speaker 1: standard has been met in the case of the current 298 00:15:49,196 --> 00:15:52,636 Speaker 1: President of the United States. Where you're finding your voice 299 00:15:52,676 --> 00:15:54,556 Speaker 1: and where you're trying to figure out what's the right tone. 300 00:15:55,196 --> 00:15:56,956 Speaker 1: How do I play this room, so to speak. I 301 00:15:56,956 --> 00:15:59,356 Speaker 1: don't want to diminish it by saying that, but I 302 00:15:59,436 --> 00:16:03,156 Speaker 1: have to perform in these conditions, not academic conditions or 303 00:16:03,236 --> 00:16:07,436 Speaker 1: something else. And so I once I got that feel, 304 00:16:07,476 --> 00:16:10,116 Speaker 1: and I did have the benefit of following both you 305 00:16:10,156 --> 00:16:13,316 Speaker 1: and Pam, so I was able to kind of studying 306 00:16:13,516 --> 00:16:15,516 Speaker 1: and not just hear what y'all were saying, but also 307 00:16:15,996 --> 00:16:19,636 Speaker 1: study the circumstances, which in some respects made me calmer 308 00:16:20,236 --> 00:16:23,316 Speaker 1: because I felt I had a better grasp on the conditions. 309 00:16:23,356 --> 00:16:26,356 Speaker 1: And then I kind of tailored my remarks. Accordingly, that's 310 00:16:26,356 --> 00:16:29,476 Speaker 1: a great observation and it helps me to explain something 311 00:16:29,476 --> 00:16:32,356 Speaker 1: that I was feeling before I started speaking, which was 312 00:16:32,476 --> 00:16:35,116 Speaker 1: since I was the first witness, I had no idea 313 00:16:35,196 --> 00:16:36,636 Speaker 1: what the tone in the room was. I mean, the 314 00:16:36,676 --> 00:16:39,436 Speaker 1: Chairman Gerald, now they're set to start speaking. Professor Feldon, 315 00:16:39,556 --> 00:16:43,756 Speaker 1: you may begin, and immediately the ranking Republican Doug cons 316 00:16:43,836 --> 00:16:46,396 Speaker 1: interrupted me. Mister chairman before we get the chairman and 317 00:16:46,436 --> 00:16:49,436 Speaker 1: members of the committee, mister Chairman have emotion. So that 318 00:16:49,556 --> 00:16:52,956 Speaker 1: was already, you know, weird, and I wasn't clear on 319 00:16:52,956 --> 00:16:54,916 Speaker 1: whether I should continue speaking or stop speaking, so I 320 00:16:54,996 --> 00:16:57,876 Speaker 1: sort of stopped and then I started again. Mister Chairman 321 00:16:57,916 --> 00:17:00,036 Speaker 1: and members of the committee, thank you very much for 322 00:17:00,076 --> 00:17:05,476 Speaker 1: the opportunity to appear. And in my head, the blood 323 00:17:05,516 --> 00:17:08,476 Speaker 1: was rushing and my heart was pounding, and I was 324 00:17:08,516 --> 00:17:12,716 Speaker 1: just thinking to myself, I really don't want to sound nervous, 325 00:17:13,156 --> 00:17:16,356 Speaker 1: and actually, at the end of my prepared statement, I 326 00:17:16,476 --> 00:17:19,076 Speaker 1: thought to myself, well, Noah, you must have sounded very, 327 00:17:19,196 --> 00:17:22,396 Speaker 1: very nervous. On the basis of the testimony and the 328 00:17:22,436 --> 00:17:27,156 Speaker 1: evidence before the House, President Trump has committed impeachable high 329 00:17:27,196 --> 00:17:32,116 Speaker 1: crimes and misdemeanors by corruptly abusing the office of the presidency. 330 00:17:32,396 --> 00:17:34,436 Speaker 1: And it was only when I went back and watched 331 00:17:34,476 --> 00:17:38,516 Speaker 1: myself on videotape that I realized that. Luckily, by trying 332 00:17:38,516 --> 00:17:41,996 Speaker 1: to be forceful, I think I suppressed the shakiness in 333 00:17:42,036 --> 00:17:44,996 Speaker 1: my voice and the you know, and the pounding heart, 334 00:17:44,996 --> 00:17:47,156 Speaker 1: and I think maybe I almost had to be forceful 335 00:17:47,276 --> 00:17:50,116 Speaker 1: in order to mask the fact that, you know, there 336 00:17:50,156 --> 00:17:52,356 Speaker 1: was something nerve wracking about being the first one. I 337 00:17:52,396 --> 00:17:54,076 Speaker 1: felt like I was speaking into the void. And I 338 00:17:54,116 --> 00:17:56,276 Speaker 1: don't think I really understood why that was so painful, 339 00:17:56,556 --> 00:17:58,276 Speaker 1: or not painful it is the wrong word, but why 340 00:17:58,276 --> 00:18:00,996 Speaker 1: it was so challenging until you just talked about getting 341 00:18:00,996 --> 00:18:02,196 Speaker 1: the feel of the room. It's hard to get the 342 00:18:02,196 --> 00:18:03,556 Speaker 1: feel of the room when you're supposed to be the 343 00:18:03,596 --> 00:18:07,956 Speaker 1: first person to talk. So that brings us to the 344 00:18:07,996 --> 00:18:10,996 Speaker 1: public's reaction, which we didn't know when we were in 345 00:18:11,036 --> 00:18:14,676 Speaker 1: the room, thank goodness, but which we discovered pretty clearly 346 00:18:14,716 --> 00:18:18,196 Speaker 1: when we came out and turned on our phones. I mean, 347 00:18:18,236 --> 00:18:21,516 Speaker 1: for me, a really dramatic moment was when we left 348 00:18:21,556 --> 00:18:23,756 Speaker 1: at the very end of the day, this long, grueling day, 349 00:18:23,836 --> 00:18:26,436 Speaker 1: nine plus hours. I think we were in there and 350 00:18:26,796 --> 00:18:29,596 Speaker 1: someone from the Sergeant at Arms Office of the House 351 00:18:29,676 --> 00:18:33,396 Speaker 1: was there to meet us in the witness room and said, Pam, 352 00:18:33,436 --> 00:18:34,916 Speaker 1: you know, I hate to tell you this, but you're 353 00:18:34,956 --> 00:18:39,436 Speaker 1: getting death threats. And you know, that was pretty shocking moment, 354 00:18:39,876 --> 00:18:42,756 Speaker 1: certainly for me to hear, and I imagine for Pam 355 00:18:42,756 --> 00:18:45,356 Speaker 1: as well, and it didn't really let up. Now. I 356 00:18:45,396 --> 00:18:49,276 Speaker 1: think Pam unquestionably got the worst of it. I think 357 00:18:49,276 --> 00:18:52,116 Speaker 1: a large part of that is good old fashioned misogyny. 358 00:18:52,156 --> 00:18:54,556 Speaker 1: I think, you know, a woman taking on the president 359 00:18:54,596 --> 00:18:56,156 Speaker 1: of the the United States is going to just get more 360 00:18:56,676 --> 00:19:01,836 Speaker 1: and deeper negativity than men are. She also got, as 361 00:19:01,956 --> 00:19:04,476 Speaker 1: I got, and as you got, a huge amount of 362 00:19:04,476 --> 00:19:07,916 Speaker 1: negative commentary. I should say, I think I got about 363 00:19:07,956 --> 00:19:10,196 Speaker 1: as much positive as negative. You know, huge numbers of 364 00:19:10,196 --> 00:19:12,996 Speaker 1: people's coming out of the woodwork. You know, I knew 365 00:19:12,996 --> 00:19:14,636 Speaker 1: you in summer camp. Thank you for your service to 366 00:19:14,676 --> 00:19:17,796 Speaker 1: the country. Strangers writing that, lots of very uplifting stuff, 367 00:19:18,116 --> 00:19:21,956 Speaker 1: but also a really strong thread of pretty vicious negativity. 368 00:19:22,396 --> 00:19:24,716 Speaker 1: And at least in my instance, and we should talk 369 00:19:24,756 --> 00:19:27,236 Speaker 1: about whether you had this experience too, A lot of 370 00:19:27,276 --> 00:19:29,276 Speaker 1: it was anti semitic. A lot of the negative stuff 371 00:19:29,276 --> 00:19:33,636 Speaker 1: was anti semitic. I'm wondering first of all, was that 372 00:19:33,836 --> 00:19:35,636 Speaker 1: was that your experience? And then we should talk about 373 00:19:35,716 --> 00:19:42,156 Speaker 1: how it felt that was mostly my experience. I mean, 374 00:19:42,156 --> 00:19:44,836 Speaker 1: I guess the first thing I should mention is for me, 375 00:19:45,156 --> 00:19:50,116 Speaker 1: the hate mail hugely outnumbered anything else it was. It 376 00:19:50,196 --> 00:19:52,276 Speaker 1: may have been not just ten to one, it could 377 00:19:52,276 --> 00:19:53,916 Speaker 1: be more. I think it's more like one hundred and one. 378 00:19:55,316 --> 00:19:57,756 Speaker 1: I expected some of that. I don't know that I 379 00:19:57,796 --> 00:20:00,996 Speaker 1: could expected, you know, the volume of it, and it 380 00:20:01,036 --> 00:20:03,236 Speaker 1: was exactly the kind of vituol you described. It was 381 00:20:03,396 --> 00:20:08,916 Speaker 1: very hateful, lots cursing, lots of profanity, and lots of 382 00:20:09,156 --> 00:20:12,076 Speaker 1: declarations that you know you don't know X and you 383 00:20:12,076 --> 00:20:15,716 Speaker 1: know you should be fired. And and yes, a lot 384 00:20:15,796 --> 00:20:20,276 Speaker 1: of it was anti Semitic, and so that that was 385 00:20:20,356 --> 00:20:23,196 Speaker 1: like a tidal way. And I got some very nice 386 00:20:23,636 --> 00:20:27,436 Speaker 1: emails and even letters. And one thing that's very striking 387 00:20:27,476 --> 00:20:30,556 Speaker 1: and actually very meaningful for me is that I heard 388 00:20:30,556 --> 00:20:33,036 Speaker 1: from a lot of people that I grew up within 389 00:20:33,116 --> 00:20:36,676 Speaker 1: forty years ago in Alabama, and they were very nice, 390 00:20:37,716 --> 00:20:41,956 Speaker 1: remarkably kind, and very thoughtful, and that was I don't 391 00:20:41,996 --> 00:20:44,596 Speaker 1: know that I expected. It was very nice. I think 392 00:20:44,676 --> 00:20:48,556 Speaker 1: the level of anti semitism was more extreme this time 393 00:20:48,556 --> 00:20:51,196 Speaker 1: than I've ever experienced it in this setting. I mean, 394 00:20:51,236 --> 00:20:53,316 Speaker 1: obviously when I grew up, I experienced it a great deal. 395 00:20:53,436 --> 00:20:55,636 Speaker 1: Well you say something about that, you say, you say obviously, 396 00:20:55,716 --> 00:20:58,556 Speaker 1: But I think a lot of people, especially you know, 397 00:20:58,636 --> 00:21:01,836 Speaker 1: let's say our kids age, don't really know what it 398 00:21:01,876 --> 00:21:04,756 Speaker 1: would have been like to be a Jewish kid in Mobile, 399 00:21:04,876 --> 00:21:08,236 Speaker 1: Alabama when you were growing up in the sixties and 400 00:21:08,396 --> 00:21:12,476 Speaker 1: early SEVENTIESE what what was that like? I mean, how 401 00:21:12,476 --> 00:21:15,156 Speaker 1: how did you experience anti Semitism as a kid? Was 402 00:21:15,196 --> 00:21:17,916 Speaker 1: it was it comments? Was it people picking fights with you? 403 00:21:18,236 --> 00:21:20,196 Speaker 1: How did it? How did it work? Yes? It was 404 00:21:20,236 --> 00:21:22,276 Speaker 1: comments and it was fights. I got beaten up a 405 00:21:22,276 --> 00:21:25,076 Speaker 1: fair bit. And you're a big guy, and you were 406 00:21:25,076 --> 00:21:26,836 Speaker 1: a serious athlete, right, I mean, weren't you? Well I was. 407 00:21:27,156 --> 00:21:29,076 Speaker 1: I read somewhere you were the number two tennis player 408 00:21:29,076 --> 00:21:30,836 Speaker 1: in the state of Alabama, So you were you were 409 00:21:30,876 --> 00:21:33,276 Speaker 1: a jock, and they were still coming after you. Yeah. 410 00:21:33,316 --> 00:21:35,196 Speaker 1: Well you can imagine that you, as tennis player in 411 00:21:35,196 --> 00:21:39,636 Speaker 1: football country was not exactly you know, a model citizen. 412 00:21:40,076 --> 00:21:44,276 Speaker 1: Um and so um it manifested itself in all sorts 413 00:21:44,316 --> 00:21:48,756 Speaker 1: of different ways. Yes, people in school would say nasty things, 414 00:21:49,196 --> 00:21:51,556 Speaker 1: and certainly, both in school and out of school, I 415 00:21:51,556 --> 00:21:56,916 Speaker 1: would get beaten up somewhat regularly, um and um. And 416 00:21:57,156 --> 00:21:59,716 Speaker 1: although I was a competitive tennis player back at this 417 00:21:59,756 --> 00:22:02,836 Speaker 1: period of time, I could not play in any country 418 00:22:02,836 --> 00:22:06,316 Speaker 1: clubs because all the country clubs barre Jewish members. And 419 00:22:06,356 --> 00:22:08,836 Speaker 1: so whenever there was a tennis tournament in a country 420 00:22:08,876 --> 00:22:10,476 Speaker 1: club in those days, there were a lot of tennis 421 00:22:10,516 --> 00:22:13,116 Speaker 1: tournaments in country clubs, I could not play, Wow, because 422 00:22:13,116 --> 00:22:14,516 Speaker 1: it wasn't just that. So it wasn't just that you 423 00:22:14,556 --> 00:22:17,716 Speaker 1: couldn't be a member. It was more like a segregation model. Yeah, 424 00:22:17,756 --> 00:22:21,116 Speaker 1: literally could not go into the club. That's play Becauespecially 425 00:22:21,156 --> 00:22:23,036 Speaker 1: there must have been other kids playing who weren't members, 426 00:22:23,196 --> 00:22:28,516 Speaker 1: but they weren't Jewish, that's correct. Wow. And so I 427 00:22:28,516 --> 00:22:30,276 Speaker 1: could play in public courts, but I couldn't play in 428 00:22:30,316 --> 00:22:33,556 Speaker 1: private courts basically. And did that do you think affect 429 00:22:33,556 --> 00:22:36,116 Speaker 1: you when you started getting you know, one hundred to 430 00:22:36,156 --> 00:22:37,996 Speaker 1: one ratio of of hate mail with a lot of 431 00:22:37,996 --> 00:22:41,276 Speaker 1: any Semitism? I mean, did was it upsetting? I don't. 432 00:22:41,396 --> 00:22:44,156 Speaker 1: I don't know what the word would be. It's disturbing, 433 00:22:44,236 --> 00:22:48,196 Speaker 1: I don't, Yeah, Um, I think it's it's really sad 434 00:22:48,556 --> 00:22:51,156 Speaker 1: um and I think it was upset more from my 435 00:22:51,236 --> 00:22:53,836 Speaker 1: family because their threats made against my family as well. 436 00:22:54,396 --> 00:22:57,476 Speaker 1: So we had to get campus police UM and the 437 00:22:57,516 --> 00:22:59,956 Speaker 1: local police in Chapel Hill to kind of monitor our home, 438 00:22:59,996 --> 00:23:03,716 Speaker 1: and they're still coming by occasionally, goodness, check on our home. Upsetting. 439 00:23:04,036 --> 00:23:07,916 Speaker 1: The law school has essentially raised my information and you know, 440 00:23:07,916 --> 00:23:10,276 Speaker 1: I'm not I didn't ask for this, but the law 441 00:23:10,276 --> 00:23:12,556 Speaker 1: school decided maybe the best response was less pretend like 442 00:23:12,596 --> 00:23:16,916 Speaker 1: he's not here, so they took all indications of my office, 443 00:23:17,036 --> 00:23:22,556 Speaker 1: my phone, my email, everything's gone. So it's a weird feeling. 444 00:23:23,396 --> 00:23:26,876 Speaker 1: It's it's ironic. You're you're the most famous professor and 445 00:23:26,996 --> 00:23:29,876 Speaker 1: there's no information about you on the website except that 446 00:23:29,876 --> 00:23:32,396 Speaker 1: you are their most famous professor. Yeah. Well yeah, and 447 00:23:32,556 --> 00:23:36,276 Speaker 1: somehow disappeared. Yeah wow. And and maybe some of this 448 00:23:36,436 --> 00:23:37,836 Speaker 1: has to do with a little bit of being the 449 00:23:37,876 --> 00:23:39,996 Speaker 1: south of the Chapel Hills. It's one of the great 450 00:23:39,996 --> 00:23:42,116 Speaker 1: college towns. It's not an anti Semitic in any way 451 00:23:42,116 --> 00:23:46,116 Speaker 1: shape course, of course, And so I think that it's um. 452 00:23:46,796 --> 00:23:48,996 Speaker 1: So some of it did feel from your arn and 453 00:23:49,156 --> 00:23:51,116 Speaker 1: maybe that just provoked to me a feeling of great 454 00:23:51,156 --> 00:23:53,436 Speaker 1: sadness that after so many years, you know, I've come 455 00:23:53,476 --> 00:23:56,356 Speaker 1: full circle. You know, I think you know what you're saying. 456 00:23:56,516 --> 00:23:58,676 Speaker 1: First of all, I feel deep sympathy for you. I 457 00:23:59,356 --> 00:24:02,436 Speaker 1: it's a reminder to me that you know, we've all 458 00:24:02,556 --> 00:24:04,916 Speaker 1: we've we both have the white man privilege, which is 459 00:24:04,916 --> 00:24:07,316 Speaker 1: a good privilege to have in life. But there's an 460 00:24:07,356 --> 00:24:10,476 Speaker 1: extra privilege that I have of being in the Northeast 461 00:24:10,956 --> 00:24:15,516 Speaker 1: and from a generation that didn't really experience any over 462 00:24:15,796 --> 00:24:19,156 Speaker 1: anti semitism. You know, no getting beaten up, you know, 463 00:24:19,236 --> 00:24:21,716 Speaker 1: certainly no inability to you know, play in a in 464 00:24:21,756 --> 00:24:24,996 Speaker 1: a club. You mentioned your family. One of the pleasures 465 00:24:24,996 --> 00:24:27,636 Speaker 1: for me of the whole long day was getting to 466 00:24:27,636 --> 00:24:29,236 Speaker 1: spend a little bit of time in the witness room 467 00:24:29,276 --> 00:24:31,676 Speaker 1: with your son Noah, who came and sat behind you 468 00:24:31,756 --> 00:24:36,236 Speaker 1: during the entire hearing. What was his takeaway from the 469 00:24:36,596 --> 00:24:39,756 Speaker 1: from the whole day? And he seems incredibly smart, incredibly focused, 470 00:24:40,036 --> 00:24:41,796 Speaker 1: you know, knew all the details. Half the time. I 471 00:24:41,796 --> 00:24:43,476 Speaker 1: thought to myself, maybe he should be up there testifying 472 00:24:43,516 --> 00:24:46,836 Speaker 1: inside of me. Um, what what was it? What was 473 00:24:46,916 --> 00:24:49,916 Speaker 1: his ultimate takeaway from the whole day? Well, that's very sweet, 474 00:24:49,956 --> 00:24:51,916 Speaker 1: So thank you for saying that, and he said he 475 00:24:51,956 --> 00:24:54,356 Speaker 1: saw you later in the airport as well, So yeah, 476 00:24:54,356 --> 00:24:56,756 Speaker 1: we did see each other in the air I really 477 00:24:57,116 --> 00:24:59,036 Speaker 1: then I was drinking a very large Manhattan and I 478 00:24:59,076 --> 00:25:00,676 Speaker 1: would have invited him to join me, but he was not. 479 00:25:00,756 --> 00:25:03,796 Speaker 1: He was not of itch, that's right. But but thank 480 00:25:03,876 --> 00:25:07,196 Speaker 1: you for for all that. Um. This is my seventeen 481 00:25:07,276 --> 00:25:09,516 Speaker 1: year old son. He's very interested in politics. It's very 482 00:25:09,516 --> 00:25:13,996 Speaker 1: interested in the Constitution. But um and also, by the way, 483 00:25:14,116 --> 00:25:19,716 Speaker 1: incredibly proud of his Jewish identity, and so he I 484 00:25:19,756 --> 00:25:22,516 Speaker 1: think had asked me at some point, maybe way back 485 00:25:22,516 --> 00:25:24,756 Speaker 1: in the summer, he said, well, Dad, if you end 486 00:25:24,836 --> 00:25:27,076 Speaker 1: up he's hurt in our household. That I testified the 487 00:25:27,076 --> 00:25:28,676 Speaker 1: Clining hearing. So at one point he said, you know, Dad, 488 00:25:28,676 --> 00:25:30,836 Speaker 1: if you get invited, would you take me? And I 489 00:25:30,876 --> 00:25:33,916 Speaker 1: said sure, what Dad? Would you know? You say sure? 490 00:25:34,436 --> 00:25:36,636 Speaker 1: And then the day came and the first thing he said, 491 00:25:36,796 --> 00:25:38,836 Speaker 1: after I you know, I mentioned that this had keim. 492 00:25:39,076 --> 00:25:41,156 Speaker 1: He said, well, you promised, you promised to take me, 493 00:25:42,436 --> 00:25:45,116 Speaker 1: So I did, and he paid very close attention. He 494 00:25:45,196 --> 00:25:49,556 Speaker 1: was very incredibly sensitive to everything going on in the room, 495 00:25:49,796 --> 00:25:52,876 Speaker 1: but also very aware. And if you see the videos 496 00:25:53,316 --> 00:25:56,196 Speaker 1: of me testifying, you'll see him looking around the room 497 00:25:56,236 --> 00:25:59,036 Speaker 1: a lot behind me, so he was absorbing it, and 498 00:25:59,116 --> 00:26:03,076 Speaker 1: I think he was really struck by the really harsh partisanship. 499 00:26:03,636 --> 00:26:06,516 Speaker 1: The tone just stunned him. The fact that people could 500 00:26:06,516 --> 00:26:09,756 Speaker 1: talk that meanly to other people. You know, there is 501 00:26:10,156 --> 00:26:12,036 Speaker 1: we've kind of touched on this a little bit. If 502 00:26:12,076 --> 00:26:15,756 Speaker 1: you're concerned about equality, and we all are, it's remarkable 503 00:26:15,756 --> 00:26:17,556 Speaker 1: when you're in a room like that and you have 504 00:26:17,636 --> 00:26:20,996 Speaker 1: members of the House of Representatives yelling and screaming down 505 00:26:21,036 --> 00:26:24,196 Speaker 1: at you, and here's the thing you cannot yell and 506 00:26:24,236 --> 00:26:28,556 Speaker 1: scream back. True. That is the essence of inequality, I think, 507 00:26:28,556 --> 00:26:31,076 Speaker 1: where they are using their position in a way to 508 00:26:31,076 --> 00:26:33,476 Speaker 1: demean you. And my son really picked up on that. 509 00:26:33,556 --> 00:26:36,436 Speaker 1: He thought it was just I can't even put in 510 00:26:36,476 --> 00:26:40,996 Speaker 1: your superlatives here. He was just absolutely outraged by that. 511 00:26:40,996 --> 00:26:44,116 Speaker 1: That's fascinating. Yeah, I'm glad you made that point, Michaelin. 512 00:26:44,156 --> 00:26:46,676 Speaker 1: It brings me to my last question, and that has 513 00:26:46,716 --> 00:26:49,596 Speaker 1: to do with how you think about our roles as 514 00:26:49,636 --> 00:26:52,956 Speaker 1: law professors. Here. I have to say a couple of 515 00:26:52,996 --> 00:26:56,556 Speaker 1: my most cynical friends, one of whom is actually a 516 00:26:56,916 --> 00:27:01,236 Speaker 1: Trump person, you know, said to me privately, you know 517 00:27:01,276 --> 00:27:04,636 Speaker 1: what were you doing out there sounding like you can 518 00:27:04,716 --> 00:27:07,636 Speaker 1: speak on behalf of the constitution. In fact, someone said 519 00:27:07,636 --> 00:27:10,316 Speaker 1: to me, you sound like a rabbi and synagogue trying to, 520 00:27:10,516 --> 00:27:13,036 Speaker 1: you know, say what the toura means. And you know, 521 00:27:13,116 --> 00:27:17,396 Speaker 1: my answer was, Okay, I'll take that analogy because part 522 00:27:17,396 --> 00:27:19,516 Speaker 1: of my job as a law professor is to teach 523 00:27:19,516 --> 00:27:21,196 Speaker 1: students and to teach them that there are two sides 524 00:27:21,196 --> 00:27:23,996 Speaker 1: to every question. But that doesn't mean I can't believe 525 00:27:24,076 --> 00:27:27,516 Speaker 1: that one of the answers is true. And in this instance, 526 00:27:27,636 --> 00:27:29,596 Speaker 1: I felt like my job as a law professor was 527 00:27:29,636 --> 00:27:32,316 Speaker 1: actually to stand up and say not on the one hand. 528 00:27:32,356 --> 00:27:34,756 Speaker 1: On the other hand, but actually, this is what the 529 00:27:34,796 --> 00:27:38,116 Speaker 1: constitution means. This isn't a hard case. The frameworks were 530 00:27:38,156 --> 00:27:41,316 Speaker 1: really clear. They specifically talked about these issues. It's not like, 531 00:27:41,356 --> 00:27:43,236 Speaker 1: what did the founding fathers think about smartphones when they 532 00:27:43,276 --> 00:27:45,356 Speaker 1: never heard of a smartphone? This is what did they 533 00:27:45,356 --> 00:27:47,636 Speaker 1: think about the distortion or presidential election? Well, as a 534 00:27:47,636 --> 00:27:49,476 Speaker 1: matter of fact, they talked about it. What did they 535 00:27:49,476 --> 00:27:51,396 Speaker 1: think about, you know, bribery, As a matter of fact, 536 00:27:51,396 --> 00:27:53,356 Speaker 1: they talked about it. So I was sort of willing 537 00:27:53,436 --> 00:27:56,316 Speaker 1: to embrace the idea that sometimes our job is to 538 00:27:56,396 --> 00:27:59,596 Speaker 1: be kind of secular priests of the constitutional faith, you know, 539 00:27:59,636 --> 00:28:01,956 Speaker 1: to stand up and speak on behalf of the constitution. 540 00:28:02,716 --> 00:28:04,636 Speaker 1: You know, some of our colleagues think we shouldn't do that. 541 00:28:05,516 --> 00:28:08,036 Speaker 1: Do you share some instinct that you know that is 542 00:28:08,076 --> 00:28:11,956 Speaker 1: actually our role in those circumstances? Yes, I do share that. 543 00:28:12,836 --> 00:28:14,836 Speaker 1: So there are two points, and I think that's really 544 00:28:14,916 --> 00:28:18,316 Speaker 1: the first point. Another way to put it is that 545 00:28:18,396 --> 00:28:22,716 Speaker 1: I actually do believe in expertise, and I believe in facts, 546 00:28:22,956 --> 00:28:25,476 Speaker 1: and I think that somebody who spends a lot of 547 00:28:25,476 --> 00:28:28,916 Speaker 1: time studying something and has thought about it and analyzed 548 00:28:28,956 --> 00:28:30,636 Speaker 1: it and read about it and sort of come up with, 549 00:28:31,316 --> 00:28:36,196 Speaker 1: let's say, supportable insights and useful sort of thoughts about it, 550 00:28:36,996 --> 00:28:40,036 Speaker 1: ought to share that expertise. So that's the first reason. 551 00:28:40,556 --> 00:28:42,356 Speaker 1: But the second is I tell this to my class 552 00:28:42,396 --> 00:28:43,916 Speaker 1: all the time, and I feel, to some extent this 553 00:28:43,996 --> 00:28:46,436 Speaker 1: is our duty as well. One of the first things 554 00:28:46,436 --> 00:28:48,636 Speaker 1: I always say, although fewer and fewer students are aware 555 00:28:48,676 --> 00:28:52,076 Speaker 1: of this story, the great story about the Emperor's new clothes, 556 00:28:52,796 --> 00:28:56,196 Speaker 1: and how what a lawyer has to do I think 557 00:28:56,476 --> 00:28:59,916 Speaker 1: is have the courage to be able to say I 558 00:28:59,956 --> 00:29:03,116 Speaker 1: don't think he has any clothes on. This comes back 559 00:29:03,156 --> 00:29:06,996 Speaker 1: from my background and growing up in Alabama. Somebody has 560 00:29:07,036 --> 00:29:08,876 Speaker 1: to be able to say, this is what a lawyer 561 00:29:09,236 --> 00:29:12,476 Speaker 1: most useful function is. I think, hold on, now, that's 562 00:29:12,476 --> 00:29:15,316 Speaker 1: a violation of the law. There's something bigger than us 563 00:29:15,356 --> 00:29:18,116 Speaker 1: here and we have to recognize that. And that bigger 564 00:29:18,156 --> 00:29:21,116 Speaker 1: thing is the Constitution. And if I think it's being breached, 565 00:29:21,716 --> 00:29:23,956 Speaker 1: and I'm thoughtful and I'm doing this in good faith, 566 00:29:23,996 --> 00:29:27,836 Speaker 1: I think I have a duty to express that. Michael, 567 00:29:27,876 --> 00:29:30,636 Speaker 1: thank you for being a model to me of what 568 00:29:30,716 --> 00:29:33,076 Speaker 1: it is to be an expert, what it is to 569 00:29:33,236 --> 00:29:36,996 Speaker 1: believe that there is truth about the Constitution, and what 570 00:29:37,036 --> 00:29:39,476 Speaker 1: it is to go out there and tell people what 571 00:29:39,636 --> 00:29:41,956 Speaker 1: that truth is. Really. Thank you so much. Thank you 572 00:29:42,076 --> 00:29:43,956 Speaker 1: such a great role model, and thanks thanks for this 573 00:29:44,076 --> 00:29:46,436 Speaker 1: great conversation. It's great to talk to you. Thank you. Noah. 574 00:30:00,356 --> 00:30:03,556 Speaker 1: Since Michael and I spoke, the impeachment trial has ground 575 00:30:03,636 --> 00:30:08,036 Speaker 1: to a premature halt. As of this moment, it seems 576 00:30:08,156 --> 00:30:10,876 Speaker 1: overwhelmingly likely that by the end of the day, the 577 00:30:11,036 --> 00:30:14,356 Speaker 1: Senate of the United States is going to vote on 578 00:30:14,356 --> 00:30:17,476 Speaker 1: whether to remove the president, and almost certainly it will 579 00:30:17,556 --> 00:30:20,036 Speaker 1: vote not to remove him, and that it's going to 580 00:30:20,116 --> 00:30:25,076 Speaker 1: do so without ever hearing any witnesses at all. That 581 00:30:25,116 --> 00:30:29,156 Speaker 1: reason is a really fundamental question was the trial legitimate 582 00:30:29,316 --> 00:30:32,316 Speaker 1: in the first place. This is going to be a 583 00:30:32,356 --> 00:30:36,316 Speaker 1: difficult and controversial issue that Democrats and Republicans are going 584 00:30:36,356 --> 00:30:39,596 Speaker 1: to continue to fight about for quite some time. You 585 00:30:39,596 --> 00:30:42,196 Speaker 1: can expect Democrats to point out that never in the 586 00:30:42,276 --> 00:30:44,836 Speaker 1: history of the United States Senate has there ever been 587 00:30:44,876 --> 00:30:48,836 Speaker 1: an impeachment trial without witnesses before. You can also expect 588 00:30:48,916 --> 00:30:52,076 Speaker 1: Democrats to say that the basic definition of a trial 589 00:30:52,516 --> 00:30:56,396 Speaker 1: requires looking at some sort of evidence, whether it's witnesses 590 00:30:56,516 --> 00:30:59,956 Speaker 1: or documents or something, and that therefore this really didn't 591 00:30:59,956 --> 00:31:02,316 Speaker 1: count as a trial, and that the Senate in some 592 00:31:02,436 --> 00:31:07,796 Speaker 1: sense failed to fulfill its constitutional responsibilities. On the Republican side, 593 00:31:07,836 --> 00:31:09,996 Speaker 1: you can expect people to say, not only now, but 594 00:31:10,116 --> 00:31:12,956 Speaker 1: well into the future, that the Senate just didn't have 595 00:31:13,076 --> 00:31:15,476 Speaker 1: to consider anything more than the evidence that had been 596 00:31:15,476 --> 00:31:18,716 Speaker 1: brought by the House. Some Republicans will say, as some 597 00:31:18,796 --> 00:31:21,396 Speaker 1: are saying right now, that even if all of the 598 00:31:21,476 --> 00:31:24,396 Speaker 1: charges against Donald Trump were true, they didn't rise to 599 00:31:24,436 --> 00:31:28,076 Speaker 1: the level of an impeachable offense. Others will take the 600 00:31:28,116 --> 00:31:31,516 Speaker 1: position that even if Trump did all of the things 601 00:31:31,556 --> 00:31:34,236 Speaker 1: he was accused of doing. There was just nothing wrong 602 00:31:34,236 --> 00:31:37,556 Speaker 1: with it at all. The judgment of history on this 603 00:31:37,636 --> 00:31:42,036 Speaker 1: question is likely to remain mixed for some time, but 604 00:31:42,076 --> 00:31:45,356 Speaker 1: that's not the most important point. The most important point 605 00:31:45,396 --> 00:31:47,276 Speaker 1: is that future Senates are going to look back on 606 00:31:47,316 --> 00:31:49,836 Speaker 1: what this Senate did and treat it as at least 607 00:31:49,916 --> 00:31:54,516 Speaker 1: a somewhat convincing precedent for how they should act. It 608 00:31:54,556 --> 00:31:56,996 Speaker 1: will no longer be possible to say that at every 609 00:31:57,076 --> 00:32:00,476 Speaker 1: single impeachment trial since the beginning of the Republic there 610 00:32:00,516 --> 00:32:03,636 Speaker 1: have always been witnesses, because now there will have been 611 00:32:03,676 --> 00:32:07,276 Speaker 1: a trial with no witnesses at all. I should add 612 00:32:07,516 --> 00:32:11,276 Speaker 1: that we did not get here overnight. Over time, the 613 00:32:11,356 --> 00:32:14,556 Speaker 1: Senate has increasingly been willing to listen to witnesses who 614 00:32:14,636 --> 00:32:17,156 Speaker 1: were not appearing directly in front of it, but who 615 00:32:17,196 --> 00:32:20,956 Speaker 1: gave depositions behind closed doors which could then be watched 616 00:32:21,036 --> 00:32:25,356 Speaker 1: indirectly as excerpts by the senators. On the surface, that 617 00:32:25,476 --> 00:32:27,516 Speaker 1: might not sound like it was such a deviation from 618 00:32:27,516 --> 00:32:30,196 Speaker 1: the tradition of hearing witnesses directly, and maybe it didn't 619 00:32:30,196 --> 00:32:33,356 Speaker 1: seem so at the time, but in retrospect, it's really 620 00:32:33,396 --> 00:32:37,476 Speaker 1: clear that not hearing directly for witnesses was one step 621 00:32:37,596 --> 00:32:40,316 Speaker 1: along the way to a Senate that felt it did 622 00:32:40,316 --> 00:32:43,716 Speaker 1: not need to hear witnesses at all. We even heard 623 00:32:43,716 --> 00:32:46,836 Speaker 1: in this trial Republicans saying the rather shocking proposition that 624 00:32:46,876 --> 00:32:49,196 Speaker 1: it was the job of the House of Representatives together 625 00:32:49,316 --> 00:32:52,196 Speaker 1: all of the evidence, as though it weren't also the 626 00:32:52,316 --> 00:32:54,556 Speaker 1: job of those who were running the trial to hear 627 00:32:54,596 --> 00:32:58,396 Speaker 1: that evidence for themselves, as they had always done previously. 628 00:32:58,956 --> 00:33:02,276 Speaker 1: The thing about impeachment is that precedent changes very slowly. 629 00:33:02,396 --> 00:33:06,116 Speaker 1: Because we don't have very many impeachments to judge from. 630 00:33:07,236 --> 00:33:09,916 Speaker 1: I think that it's inevitably the case now that we 631 00:33:09,956 --> 00:33:12,836 Speaker 1: will come to see this trial as having been whether 632 00:33:12,916 --> 00:33:17,116 Speaker 1: legitimate or not, one option available to the Senate. If 633 00:33:17,156 --> 00:33:20,796 Speaker 1: we have a democratic president and a democratically controlled Senate, 634 00:33:21,036 --> 00:33:24,516 Speaker 1: you will hear Democrats, not Republicans, saying, you know what, 635 00:33:24,556 --> 00:33:27,516 Speaker 1: we don't absolutely need to have witnesses, because after all, 636 00:33:27,636 --> 00:33:31,556 Speaker 1: they didn't have them the last time. In the long run, 637 00:33:31,756 --> 00:33:35,996 Speaker 1: then we won't be debating the legitimacy of the trial 638 00:33:36,636 --> 00:33:40,036 Speaker 1: or the fairness of the procedures. We'll just be debating 639 00:33:40,076 --> 00:33:44,876 Speaker 1: whether to follow those procedures again the next time. After all, 640 00:33:45,196 --> 00:33:48,956 Speaker 1: it's within the constitutional power of the Senate to decide 641 00:33:49,036 --> 00:33:52,836 Speaker 1: if the trial that it conducted counted as a trial 642 00:33:52,996 --> 00:33:55,156 Speaker 1: or not. And if you leave it to somebody to 643 00:33:55,156 --> 00:33:57,236 Speaker 1: be the judge in his own cause, you can be 644 00:33:57,236 --> 00:34:07,796 Speaker 1: pretty confident that he'll find himself not guilty. Now it's 645 00:34:07,836 --> 00:34:11,036 Speaker 1: time for a segment I'll be doing every week called Playback. 646 00:34:11,556 --> 00:34:14,276 Speaker 1: I'll choose a moment in the news, play it back 647 00:34:14,316 --> 00:34:17,076 Speaker 1: to you, and then I'll try to make some sense 648 00:34:17,076 --> 00:34:21,076 Speaker 1: out of it. Here's this week's major market alert. Stocks 649 00:34:21,116 --> 00:34:24,596 Speaker 1: plunging is the spread of coronavirus rattles investors, But now 650 00:34:24,636 --> 00:34:27,396 Speaker 1: the SMB and AZDAC all posted their biggest losses of 651 00:34:27,436 --> 00:34:31,196 Speaker 1: the year by far. That's a clip from CNBC's Brian 652 00:34:31,316 --> 00:34:35,116 Speaker 1: Sullivan about the impact that the coronavirus has been having 653 00:34:35,196 --> 00:34:39,076 Speaker 1: on the markets, and where something affects the markets, before 654 00:34:39,116 --> 00:34:43,316 Speaker 1: too long, it's going to start affecting the real economy too. 655 00:34:44,676 --> 00:34:47,476 Speaker 1: How worried should we really be about the effect that 656 00:34:47,516 --> 00:34:51,836 Speaker 1: the coronavirus might have on the global exchange of trade, 657 00:34:52,316 --> 00:34:56,916 Speaker 1: which is so significantly affected by China. The answer to 658 00:34:56,956 --> 00:35:00,476 Speaker 1: that question is one of the classic instances of questions 659 00:35:00,476 --> 00:35:04,596 Speaker 1: that have to be answered by virtue of uncertainty. It's 660 00:35:04,676 --> 00:35:07,796 Speaker 1: uncertain because all we have to go on is the 661 00:35:07,836 --> 00:35:11,156 Speaker 1: experience of happened when China was struck by the Stars 662 00:35:11,236 --> 00:35:15,596 Speaker 1: virus nearly twenty years ago, and that experience is very 663 00:35:15,676 --> 00:35:18,396 Speaker 1: far from exact when it's compared to what we're dealing 664 00:35:18,436 --> 00:35:21,996 Speaker 1: with now. First of all, those are two different viruses, 665 00:35:22,076 --> 00:35:25,476 Speaker 1: and they might spread through the population in significantly different ways. 666 00:35:26,316 --> 00:35:29,116 Speaker 1: Second of all, China's role in the international economy has 667 00:35:29,156 --> 00:35:33,756 Speaker 1: expanded drastically since the last time, So all anyone can 668 00:35:33,796 --> 00:35:37,676 Speaker 1: do is make a little bet about what the probabilities 669 00:35:37,836 --> 00:35:41,316 Speaker 1: are that, in fact, we're going to be profoundly affected 670 00:35:41,516 --> 00:35:45,076 Speaker 1: globally by a process in which China might become largely 671 00:35:45,156 --> 00:35:47,956 Speaker 1: cut off from many of the supply chains in which 672 00:35:47,956 --> 00:35:53,516 Speaker 1: it's presently centrally engaged. The markets are simply one measure 673 00:35:53,916 --> 00:35:59,196 Speaker 1: of one collective group of people, acting individually, not coordinating 674 00:35:59,236 --> 00:36:03,276 Speaker 1: with each other, making bets and gambles on the probability 675 00:36:03,276 --> 00:36:06,036 Speaker 1: that this will happen, and the market is gambling from 676 00:36:06,076 --> 00:36:11,036 Speaker 1: a standpoint of very significant ignorance. Now it may seem 677 00:36:11,116 --> 00:36:15,236 Speaker 1: monstrous to try to make economic money making predictions and 678 00:36:15,356 --> 00:36:17,596 Speaker 1: bets that are intended to pay off for the people 679 00:36:17,676 --> 00:36:21,356 Speaker 1: making those bets on the basis of disease. But that's 680 00:36:21,396 --> 00:36:24,796 Speaker 1: just business as usual for economic markets, which after all, 681 00:36:24,876 --> 00:36:28,236 Speaker 1: have as their purpose trying to make a buck on 682 00:36:28,276 --> 00:36:33,076 Speaker 1: the vicissitudes of human affairs. The markets as of this 683 00:36:33,156 --> 00:36:37,436 Speaker 1: moment seem to think that the dangers of the coronavirus 684 00:36:37,476 --> 00:36:44,196 Speaker 1: profoundly disrupting the global economy are relatively small. Among the epidemiologists, 685 00:36:44,196 --> 00:36:47,316 Speaker 1: the prevailing view seems to be that the coronavirus is 686 00:36:47,396 --> 00:36:52,436 Speaker 1: not one of those viruses that's susceptible to extraordinarily rapid spreading, 687 00:36:52,716 --> 00:36:56,396 Speaker 1: infecting everybody who comes into any form of contact with 688 00:36:56,436 --> 00:37:01,516 Speaker 1: those who have the disease. But notice that the epidemiologists 689 00:37:01,756 --> 00:37:05,916 Speaker 1: are themselves little different from the people making bets in 690 00:37:05,956 --> 00:37:10,596 Speaker 1: the markets. That is, they're just engaged expressing a statistical 691 00:37:10,636 --> 00:37:14,396 Speaker 1: probability of what they think will happen, based on imperfect 692 00:37:14,436 --> 00:37:19,476 Speaker 1: models and highly dissimilar past events. So what we're dealing 693 00:37:19,476 --> 00:37:23,836 Speaker 1: with really is a set of statistical predictions by epidemiologists, 694 00:37:24,076 --> 00:37:26,876 Speaker 1: and then a set of statistical predictions by people in 695 00:37:26,916 --> 00:37:30,876 Speaker 1: the market who are betting on the bets of those epidemiologists. 696 00:37:30,876 --> 00:37:35,836 Speaker 1: In their first place it's probabilities on probabilities. All this 697 00:37:35,956 --> 00:37:38,996 Speaker 1: reminds me of a famous line by the Supreme Court 698 00:37:39,036 --> 00:37:42,396 Speaker 1: Justice Oliver Wendell Holmes Junior. He was talking about the 699 00:37:42,436 --> 00:37:45,116 Speaker 1: freedom of speech and the American system of government, and 700 00:37:45,236 --> 00:37:48,716 Speaker 1: he said that the American system of government is at 701 00:37:48,716 --> 00:37:52,916 Speaker 1: any rate an experiment, as all life is an experiment. 702 00:37:53,636 --> 00:37:55,316 Speaker 1: What Holmes meant when he said all life is an 703 00:37:55,316 --> 00:37:58,636 Speaker 1: experiment is that every day, and in almost every way, 704 00:37:58,956 --> 00:38:03,556 Speaker 1: we are betting our future on probabilities, hundreds or thousands 705 00:38:03,556 --> 00:38:07,916 Speaker 1: of probabilities of events taking place according to our expectations. 706 00:38:08,596 --> 00:38:11,556 Speaker 1: We do our best, not because that's so great, not 707 00:38:11,676 --> 00:38:14,716 Speaker 1: because it's good enough, but because it's our only option. 708 00:38:17,476 --> 00:38:20,516 Speaker 1: Deep background is brought to you by Pushkin Industries. Our 709 00:38:20,556 --> 00:38:23,876 Speaker 1: producer is Lydia gene Kott, with studio recording by Joseph 710 00:38:23,876 --> 00:38:27,956 Speaker 1: Fridman and mastering by Jason Gambrel and Jason Roskowski. Our 711 00:38:27,996 --> 00:38:31,396 Speaker 1: showrunner is Sophie mckibbon. Our theme music is composed by 712 00:38:31,476 --> 00:38:35,396 Speaker 1: Luis Garat Special thanks to the Pushkin Brass Malcolm Gladwell, 713 00:38:35,556 --> 00:38:39,236 Speaker 1: Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can 714 00:38:39,236 --> 00:38:42,996 Speaker 1: follow me on Twitter at Noah R. Feldman. This is 715 00:38:43,036 --> 00:38:43,876 Speaker 1: deep background