Dan Snow's History Hit - Impeaching the President

Episode Date: January 17, 2021

He's made history. Donald Trump has become the only President in US history to be impeached not once but twice. Three years ago Dan talked to Joshua Matz, an attorney and constitutional scholar in Washington DC and author of "To End a Presidency." He explained to Dan the history of impeachment and discussed how it works in practice. Not long after we all got a practical demonstration of impeachment and Joshua Matz played a key role. He served among the counsel for the impeachment and trial of President Trump. Following Trump's second impeachment we decided to re-release this podcast. Some of it has aged, but it has aged pretty well! 

Douglas Adams, the genius behind The Hitchhiker's Guide to the Galaxy, was a master satirist who cloaked a sharp political edge beneath his absurdist wit. Douglas Adams' The Ends of the Earth explores the ideas of the man who foresaw the dangers of the digital age and our failing politics with astounding clarity. Hear the recordings that inspired a generation of futurists, entrepreneurs and politicians. Hi everyone, welcome to Dan Snow's History. He's done it again, he's made history. Donald Trump has become the first president in the history of the american republic to be impeached twice the vote house of representatives voted to impeach him

wednesday evening this week a long time ago people were wondering when and if donald trump should be impeached once and i talked to joshua matt He's a legal scholar. He's a lawyer in Washington, D.C. He clerked for Supreme Court Justice in March 2020. He served among the council for the impeachment and trial of Donald Trump the first time. I talked to him before all that a couple of years ago, and I wanted to reissue this episode for all those who haven't listened yet. It's just a discussion with one of the finest minds I've ever talked to about impeachment, what's involved, historical precedence. Some of this will still be very relevant. Some of this will be charmingly out of date, wondering whether the political energy could be gathered to impeach Donald Trump once,

let alone twice. I hope you enjoy this podcast. If you want to come and watch wonderful historians talking about their chosen subjects, please come along to the live tour. It begins in autumn 2021, post-vaccine everybody. We're going to be having a great old time. Go to historyhit.com slash tour to get your tickets. In the meantime, everybody, enjoy the very talented Joshua Matz talking about impeachment. you were at law school and people were like, why are you doing constitutional law? You were being fed to what your passion was leading towards that area. Little did you know that constitutional lawyers would be the new rock stars during the Trump administration. Well, I have to tell you, being a lawyer nowadays is very different than when I grew up. I grew up in a family where they're all doctors. And so when we would sit down and talk about lawyers, they had some opinions about

lawyers and not many of them were the kind that I could repeat in polite company. And it's funny because now I go back home and they see the work that lawyers are doing to defend the rule of law and to protect democracy under President Trump. And they're singing a very different tune. You know, of course, the terrible thing is I wish that weren't the case. I wish they still thought lawyers were what they used to think of us as, but there's come a moment in American history where there's a need for a defense of our constitution, and it's a privilege to play some role in that process. Yeah, a few years back, I went to the Congo, and I realized that dispute settlement with lawyers might be a pretty

unpleasant process, but dispute settlement without lawyers is a terrible alternative. So thank you for all the work you're doing. Listen, let's discuss impeachment for the first time in, well, a generation. We are talking seriously about the removal of a president. Actually, perhaps we could just first say, historically, in the history of the republic, how many different ways are there to remove a president? Well, really, there's only two. One of them, I mean, apart from the fact that presidential terms naturally come to an end after four years, and then you can always just remove them by not

re-electing them. Apart from that, there's two removal mechanisms in the constitution. One of them, which was in the constitution from the very beginning, is the impeachment power, whereby a majority of the House of Representatives approves articles of impeachment against the president, and a super majority of the Senate, which is now 67 senators, must vote to convict on those articles of impeachment, triggering the president's immediate removal from office. The other mechanism to end a presidency early didn't come until the late 20th century. That set forth in Section 4 of the 25th Amendment. And it essentially says that in cases of presidential incapacity, where the president is unable to perform the powers of his, the duties of his office or to

exercise its functions, supermajority, he can be removed if a majority of his cabinet and the vice president all advise the Congress that the president is unable to exercise his powers. If the president disagrees with that assessment, he can then go and ask Congress to vote on the matter. And that would result in, I assume, a pitched political battle in circumstances like those we now have. But that's it. Under the Constitution, you can either be impeached or you can be sidelined through the 25th Amendment process. And how many presidents in the history of the Republic have been removed from office through either of those two processes? None. Now, people might be surprised by that because, of course, we've all

heard of the impeachment proceedings against Bill Clinton, against Richard Nixon, and against one in the 19th century as well. But explain to me that those actually didn't result in full impeachment. They did not. So in 1868, there was an effort to impeach Andrew Johnson, who came into office following the assassination of Abraham Lincoln. The pretense for the impeachment was that he had not complied with the law requiring him to get congressional approval before he fired certain members of his cabinet. But the real reason for the impeachment is that he was essentially a neo-Confederate and an unreconstructed racist who was using all of the powers of his office to thwart Congress's effort to reconstruct the South in the aftermath of the Civil War. He was vetoing legislation, refusing to enforce bills, and generally doing everything he could to keep the South as close

to its pre-Civil War condition as possible, with the sole exception of there not being formal slavery. And Republicans in Congress were really not willing to stand for that. And after years of effort to address the problem through other means, they finally did approve articles of impeachment against him in the House. Those articles failed in the Senate by only a single vote. And the reason that the president was saved from removal was that he essentially capitulated. He agreed to appoint moderates to his cabinet, and he agreed to go along with congressional reconstruction from there on out. And so the impeachment effort failed only because in a different sense it

succeeded. After that, there wasn't an effort to invoke the impeachment power against the president until Richard Nixon in 1973 and 74. That effort almost certainly would have succeeded. And indeed, a House committee had approved articles of impeachment that were going to go to the House for full consideration if the president had not resigned when he did in August 1974, when it had become clear that he used his powers as president and the domestic intelligence and surveillance services in an effort to crush and destroy his political opponents and then to cover up the crimes that he was involved in. Last but not least, there was an effort to impeach President Bill Clinton in 1998. This, of course, arose from the famous Monica Lewinsky scandal and the resulting investigation where the House accused

the president of perjury and obstruction of justice in response to an investigation led by Kenneth Starr and assisted by Brett Kavanaugh, who is now up for consideration for a spot on the United States Supreme Court. That effort was doomed from the outset. There was not majority support for it. The accusations against the president were weak. The House approved them largely because of Republican animus against Clinton, and it failed almost completely along partisan lines in the Senate. Other than that, although there have been mumbles of impeachment talk here and there, and there have been occasional efforts to introduce impeachment resolutions, nothing has really come close to ending a presidency through the impeachment power. The only last point I'd make here is that a poll last week reported support for impeaching

Trump at 49%. Support for impeaching Nixon was at 52% the day he resigned. So we're in a world that does seem to be moving closer to serious consideration of activating the impeachment power again. Now, what's so fascinating about your answer is the Andrew Johnson impeachment, What's so fascinating about your answer is the Andrew Johnson impeachment, as you say, it was a technicality around firing members of his cabinet. But it feels like it was an overtly political decision. They disagreed with the policies he was following. What did the founders want Congress to do in terms of impeachment? Did they only believe that presidents should be impeached in the event of actually breaking the law? Or did they agree that if you could convince Congress that the president was following bad policies, damaging policies, that he could be impeached

for that as well? The framers definitely did not want the impeachment power to be used for what they called maladministration, which is essentially run-of-the-mill policy disagreement. Being incompetent, being generally shabby, adopting policies that Congress viewed as unwise, these were not meant to be sufficient grounds to activate the impeachment power. When they used the phrase treason, bribery, or other high crimes or misdemeanors, what they had in mind were great and dangerous offenses against the state itself, conduct of a kind that really rendered a person unviable as the leader of a democratic society. And so at the convention, as examples of this, they discussed efforts to corrupt the electoral college, abuse of the fisc, embezzlement, abusing one's powers as commander inchief of the armed forces, and improper financial and other entanglements with foreign powers. They wouldn't have limited it solely to conduct that

is a criminal offense as a matter of federal statutory criminal law. That's a point that's been debated, but I think the decisive weight of the evidence is that they didn't limit it to formal indictable crimes, but they really did mean to reserve it for extraordinary offenses against the nation. And in Johnson's case, part of the reason why, in my view, that impeachment effort was justified is that the president was using a broad range of powers, including prosecutorial discretion, his ability not to enforce laws, his veto power, his power to put people in key positions of influence. He was using that power to salt the earth after the Civil War.

And the nation at that time was really in a moment, it was sort of a second founding of the country after the original constitutional design failed so spectacularly, resulting in hundreds of thousands of deaths. In those circumstances, attempting to re-erect the very system that had nearly destroyed the union didn't really qualify as an ordinary political or policy disagreement, but rose to the level of presidential conduct that threatened democracy itself. And that really is the kind of conduct that the framers had in mind when they designed this power. Joshua, for those people who don't know, for those poor, benighted people whose lives have not been enriched by a minute study of the framing of the US Constitution in the late 18th century, can you explain to all of us that the Constitution is a fairly short document. You mentioned the important phrase there, high crimes and misdemeanors.

But you have all this context for it because there were debates going on in which the framers, the people that actually wrote to and ratified that particular document, we know a lot about their thinking. So can you explain, enlarge a little bit more about the thinking behind that short phrase? Well, I'm happy to try to do it. I have to say, for those of your listeners who haven't engaged in a minute study of the Constitution, well done. And I'm glad that you're putting your lives to more productive uses. But as someone who has gone down that rabbit hole, you know, I wish we knew more than we did. There's often an effort to suggest that we can glean clarity from the history surrounding the Constitution that isn't quite there. But we do know something because Madison and others took notes during the Constitutional Convention whose proceedings were meant to be secret.

And those notes shed some light on what the framers discussed. What we know with some degree of certainty is this. The framers were designing a newly powerful federal government, and they were putting a newly energetic chief executive at the helm. This was a source of great concern to them, because coming off the experience of the Revolutionary War and coming off their parade of horribles under King George, the framers were obsessed with the possibility that an overly powerful executive could destroy the entire constitutional design. At the same time, they realized that you needed to have a sufficiently powerful executive to motivate and lead the country. So it was by reference to that goal of checking and balancing an energetic executive that they came up with the

idea, borrowed from ancient parliamentary procedure in England, of introducing impeachment as a way, as a sort of eject button, if the president really went off the rails. But they were worried about this. They realized that if the impeachment power could be used too easily, presidents could never get anything done and the entire system would spiral into instability. And for that reason, they gave control of the impeachment power to Congress, which is a political branch of government. They debated giving it to the states and they debated giving it to the Supreme Court. But ultimately ultimately they concluded that a political judgment of this magnitude was properly vested in Congress. And then they set a pretty robust threshold for exercising the power. A majority of the House and a supermajority of the Senate

is not easy to come by. And that requirement, maybe more than anything else, disciplines the definition of high crimes or misdemeanors, whatever else you or I may think they mean, if you can persuade two-thirds of the Senate that they've been committed, that's at least some good evidence that the president has done something jaw-droppingly, astonishingly dangerous that is taken by a large part of the country to menace the system as a whole. And then once they had designed the power and vested it in the Congress, they imposed other limitations on its use. So like I've already emphasized, they said you can only use it in the face of treason, bribery, and high crimes or misdemeanors. for the possibility of capital punishment or other criminal liability in an impeachment hearing, they actually made the power more modest. They said the only result of an impeachment is the president is removed from office.

And if Congress wants to, it can also disqualify the president from ever holding office again. This limitation was meant to ensure that impeachment didn't function essentially as a form of political assassination, but was limited to circumstances where you needed to get the president out of office now because he couldn't be trusted to continue holding that power. And then if the president had engaged in any other wrongdoing, you would deal with it through the judicial system later. So in short, this was a very carefully limited, carefully designed power designed to square with the broader scheme of checks and balances, which the framers in their discussions really imagined for a circumstance

where the president is out of control in ways that threaten the democratic system. This is Dan Snow's History Hit. We're talking impeachment with Joshua Matz. More after this. This is Dan Snow's History Hit. We're talking impeachment with Joshua Matz. More after this. Land a Viking longship on island shores. Scramble over the dunes of ancient Egypt and avoid the Poisoner's Cup in Renaissance Florence. Each week on Echoes of History,

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Douglas Adams, the genius behind The Hitchhiker's Guide to the Galaxy, was a master satirist who cloaked a sharp political edge beneath his absurdist wit. Douglas Adams' The Ends of the Earth explores the ideas of the man who foresaw the dangers of the digital age and our failing politics with astounding clarity. Hear the recordings that inspired a generation of futurists,

entrepreneurs and politicians. Get Douglas Adams' The Ends of the Earth now at pushkin.fm slash audiobooks or wherever audiobooks are sold. If, perhaps when, but if articles of impeachment are drawn up against, let's say, Donald Trump, impeachment are drawn up against, let's say, Donald Trump. Will scholars like you, lawyers with an extraordinary grasp of the history and the context, will you be advising Congress about exactly what the thinking was in the 18th century, what high crimes and misdemeanors might have meant to those people? Well, historically, it has definitely been the case that scholars play an active role in impeachment proceedings. There was extensive scholarly testimony in the Nixon and in the Clinton cases, lengthy articles and op-eds,

and lengthy testimony in both houses of Congress. I certainly couldn't begin to predict what role, if any, I would or would not play in any hypothetical proceedings against President Trump. But what could be assured is that Congress would look deeply into the history. You know, Congress is a political entity. And I can't say that everyone in there is going to wake up in the morning and agonize over reconstructing history as best they can before deciding how to vote. And the framers, to some extent, knew that. I mean, when you give a power like this to Congress instead of, say, to the Supreme Court,

you're not giving it to judges or scholars. You're giving it to elected representatives whose goal is to advance their political careers, to represent their constituents, and ideally to serve the nation as a whole. And so my guess is that those scholars would pay, sorry, those politicians would care about the scholarly background and would use it where it helped them and might even in some cases be persuaded by it. But the judgment is ultimately political and forward-looking rather than historical in character. The question is whether by virtue of what the president has

done in the past, we can conclude that prospectively allowing him or her to remain in office poses such a threat to the system as a whole that we need to end their presidency before their four-year term limit kicks in. And that's a judgment that history can inform, but obviously can't answer. Now, I have to ask you this, and you are totally within your rights to tell me to shut up because there are ongoing legal and other investigative proceedings happening. But in your opinion, has Donald Trump so far from what we know, passed the threshold for high crimes and misdemeanors? far from what we know past the threshold for high crimes and misdemeanors? In my view, he may have, but there is not sufficient evidence yet for me to say that he, in fact, has done so, which puts me at the more cautious side of the spectrum for folks who tend to lean generally leftward in their political orientation in the United States.

Right now, if you look at public opinion polls, like I said, about 49 percent of the country thinks that the answer to your question is yes. And if you look at the Democratic Party, it's somewhere above 85, possibly above 90 percent who feel that the answer is yes, whereas obviously Republicans tend to take a much more skeptical view. I think it's generally understood in some circles that the president's conduct leading up to and relating to the campaign and his conduct in office relating to the investigations that are looking into that conduct may well raise questions about whether he's committed impeachable offenses. People have also suggested that his financial

entanglements with foreign powers and his use of the pardon power to excuse people like Sheriff Joe Arpaio, who engaged in egregious civil rights violations against undocumented migrants, may rise to the level of high crimes or misdemeanors. My bottom line is that there are still a lot of facts outstanding, that right now there's a need for investigation. The impeachment power depends on a clear understanding of what the president did and why the president did it, not only to ensure that those rise to the level of high crimes or misdemeanors, but to answer the prospective judgment of whether someone who has committed this conduct can or can't be trusted to remain

in office. And at this point, we just don't have all the facts that we would need to make a final determination on that point. You know, there is, of course, a separate question, which is implicit in, I think, what you asked me. One question is whether the president has committed high crimes or misdemeanors, as the Constitution may define them. A different question is whether it would be wise to impeach, even if the president has committed impeachable offenses. By its terms, the Constitution does not mandate impeachment, and there are many other checks and balances within the constitutional system that Congress might invoke to address an out-of-control president. In a circumstance where a fairly substantial portion of the American public does not believe that impeachment is appropriate and does not support it, and might well view an

impeachment effort as a coup through other means, and that might in turn lead to drastic and continuing instability in the American democratic system, there are real questions and hard questions, not only about whether impeachment would be justified, which is what you've asked, but about whether it would be wise and prudent and better for the country as a whole. And in many respects, I think all of those questions remain outstanding. And we might only begin to see some glimmers of an answer after the midterm elections that are coming up in November, and after special counsel Robert Mueller has begun to file reports clarifying the findings that he's made. That's very worrying, because if I was one

of the leading figures in the right-wing communications ecosystem, I might decide to double down on very, very partisan news, sending the signal out to the other side that whilst the president might have committed impeachable offences, the schism that that would tear through the American body politic because it would not not be accepted by Republican voters, would not be worth the trouble of impeaching him. So did the framers think that you would see this ultra-partisan environment in the Republic? They didn't. And I think you've put your finger on one of the core difficulties that the American public is now confronting, which is, I think you're exactly right, that one of the core difficulties that the American public is now confronting, which is I think you're exactly right, that one of the political strategies that I expect to see on the right will be an effort to rally as many Republicans as possible around the view that any impeachment is completely illegitimate and is a conspiracy and reflects a threat to the Democratic Republic itself. Now, obviously, if you can persuade 67 senators to vote to convict President

Trump on articles of impeachment, at least a dozen, probably more of those senators would have to themselves be Republicans. And so by hypothesis, at that point in time, presumably the case for impeachment would have made substantial inroads among Republicans and among Republican elected officials. But it is totally imaginable that you could have a circumstance where there are articles of impeachment, possibly even a conviction on them in the Senate, with major dissent from 20 or 30 percent of the American public and a heavily armed segment of the American public at that. And we have already begun to see threats of reprisal and violence. This is not something

the framers anticipated. The framers didn't think there would be political parties. In fact, they designed the constitution in some ways on the premise that there wouldn't be, because they feared the corrosive role that political parties might play. And nowadays, not only do we have political parties, but we have them in a much worse way, in a much more tribal and polarized way than we've seen them before. And so there is a risk here, not to beat around the bush, that the impeachment power would fail in serving the purpose that it was meant to serve. And I don't say that in the sense that either will impeach Trump or that's proof that the Constitution has failed. What I mean to say is it is imaginable that it would be revealed

to the public that the president has committed conduct that is in fact impeachable and that by all rights should lead to his removal from office, but nonetheless won't because partisan divides run so deep that the impeachment power can't operate as intended. That's a scary thought, but it really points up the need for sensible clear-headed political judgments in the present and the need to think about these things outside the strict confines of a partisan box and if the american people can't do that then the constitution may not succeed in addressing one of its core purposes and this this the framers realized. I mean, Benjamin Franklin famously said upon leaving the Constitutional Convention and being asked what

kind of constitution they had created, he said, a republic, if you can keep it. The framers realized the Constitution was in some ways a gamble on the American people and on their ability to live up to and to defend and to effectuate and to live the democratic institutions that the constitution contemplated and if we've reached a point in time where that experiment has run aground in the face of partisan polarization then we will see a president who should be impeached not be impeached well joshua that was a tour de force. Thank you very much indeed. Please tell everyone the name of your book, which everyone needs to rush out and buy immediately. To End the Presidency, the Power of Impeachment, which I co-wrote with Professor Lawrence Tribe of Harvard

Law School, who, among other things, played an active role in the Clinton impeachment and served as a mentor to President Barack Obama when he was in law school at Harvard. Say no more. It needs to be read. Thank you very much indeed for sparing me the time. I really appreciate that. Thank you for coming on the podcast. And who knows, we may be watching you on C-SPAN before this term is out. Hi everybody, just a quick message at the end of this podcast. I'm currently sheltering in a small windswept building on a piece of rock in the Bristol Channel called Lundy. I'm here to make a podcast. I'm here enduring weather that frankly is apocalyptic.

Because I want to get some great podcast material for you guys. In return, I've got a little tiny favour to ask. If you could go to wherever you get your podcasts, if you could give it a five-star rating, if you could share it, if you could give it a review, I'd really appreciate that. Then from the comfort of your own homes, you'll be doing me a massive favour. Then more people will listen to the podcast, we can do more and more ambitious things, and I can spend more of my time getting pummeled. Thank you. Douglas Adams, the genius behind The Hitchhiker's Guide to the Galaxy, was a master satirist who cloaked a sharp political edge beneath his absurdist wit.

Douglas Adams' The Ends of the Earth explores the ideas of the man who foresaw the dangers of the digital age and our failing politics with astounding clarity. Hear the recordings that inspired a generation of futurists, entrepreneurs and politicians. Get Douglas Adams' The Ends of the Earth now at pushkin.fm slash audiobooks or wherever audiobooks are sold.