Strict Scrutiny - BONUS: Kate Shaw on Why is This Happening? with Chris Hayes

Episode Date: December 23, 2019

It's a mash-up! Kate Shaw joins Why Is This Happening? with Chris Hayes to talk all things impeachment. Follow us on Instagram, Twitter, Threads, and Bluesky

Hey, Strict Scrutiny listeners, it's Kate. This week we're bringing you another bonus episode, and this is our first podcast crossover event. So as some of you probably know, my husband, Chris Hayes, hosts a podcast called Why Is This Happening? It's a great, great podcast, and a few weeks ago he asked me to come on the show to talk about impeachment. So we had a ranging and historical conversation about past impeachments, a little bit about

our current predicament, and we are giving it to you in case our strict scrutiny listeners didn't catch it as a bonus episode of our podcast. So thanks to the WithPod team for letting us do this and for getting us the raw file. All of you subscribe to Why Is This Happening. Thanks for listening and have a great holiday, everybody. All right. So this is big. The first actual repeat guest in studio, the one and only Kate Shaw, who I have just done an intro about, which you told me you're not going to disclaim like you did the last time.

And you told me you're going to be reasonable. for ABC. You've been doing the live hearings on network television. You've been at the table discussing it. You have this great podcast called Strict Scrutiny, which is about the law and the courts. And we talk a lot about this stuff. So even if we weren't married, if I didn't love you madly as I do, and you weren't the mother of my children and life partner, in an objective sense, I've been wanting to talk to you on the pod about all this stuff. So maybe let's just start at the most basic thing, which is like you have you have a law review article, actually, that you've been working on for a while about impeachment. And it has led you to do a lot of reading about the sort of trajectory of the Constitution, its interpretation of what it means. And maybe we can just start with like how the founders thought about impeachment. Why is it in the Constitution to begin with? Sure. At the Constitutional Convention, there is definitely an argument made that, you know, is echoed in an argument that gets made today, which is we are providing

for a presidency with a four-year term. Elections are the way to deal with presidential misconduct. And that's not an argument that carries the day, right? The opposing camp says there will be times when elections are simply not enough, right, to respond to certain kinds of presidential wrongdoing. And so we should put some mechanism into the Constitution that permits the removal of a president prior to the termination of the or the completion of the president's term. But so they once they kind of agree that impeachment should be in the Constitution, there are all of these questions, first about who should even have the power of impeachment. So there's some thought that maybe the Supreme Court should hold the power of impeachment or that a majority of state legislatures should be able to impeach the president. So it's not even clear initially that it's going to be divided between the two houses

of Congress. But that's basically the structural arrangement that they get to. The House will hold the power of impeachment and then the Senate will hold the power to try impeachments. So they kind of get to an agreement that there will be impeachment in the Constitution and that that's kind of the process. And I think they also kind of early on decide that the punishment for impeachment will go no further than removal from office and disqualification from future office holding. So you're not going to get like put in the stocks and spat upon and tarred and feathered. I mean, it's, you know, there were, you know, executions after impeachments in England. And the framers... Yeah, that's usually the way it goes down.

Like you get rid of the tyrant and the tyrant ends up in the town square. It's often pretty bloody, right? And I think that they thought they were kind of civilizing and domesticating this procedure. Right. And so it is a very tame and gentle procedure compared to the kinds of impeachment that preceded it. So all of those things get decided.

And then the big question is, OK, so how are we going to define the kind of conduct that would warrant impeachment? So initially there's a draft that proposes impeachment for malpractice or neglect of duty. So that's a really low bar, not to set a high enough bar. And so there's a proposal that it'll be treason, bribery, or corruption. Interestingly, corruption would be in there as a standalone basis. Things might be cleaner if that had been retained. Yes. Although corruption, again, like— It's broad and malleable. It's broad and malleable, and it's all these definitional questions, which, you know, you told me this great line about, and I've used it on the podcast before, and I don't even know if it's an actual Yogi Berra quote, but like, if they move the first

base closer to home, there wouldn't be so many close calls at first. Like, whatever the words would be, we would be having huge fights about the interpretive category that that signifies. Absolutely. Although before they get to high crimes and misdemeanors, they have a couple of other formulations that they consider. And one of them is treason, bribery, and maladministration, which is sort of similar to this neglect of duty, just sort of being bad at your job. I think it's Madison who says that would basically mean that the Senate can eject a president whom it dislikes

or with whom it disagrees, right? Sort of giving the Senate kind of a veto over who occupies the presidency. So then George Mason, who's kind of doing the drafting at this point, takes out maladministration. He puts in high crimes and misdemeanors. So the final language is, and actually, initially, it's high crimes and misdemeanors against the United States. And that, I think, gets pulled out when it's in the Committee on Style. So that's not supposed to be a substantive change. So maybe that's interesting and important that against the United States is the original conception, right? That it is not, you know, it's these kinds of crimes and misdemeanors.

And, you know, we can talk about what kind of relationship they should bear to ordinary kinds of criminal offenses, but that the victim in some deep sense is supposed to be the polity of the United States, the government, as opposed to, you know, ordinary crimes have a lot of the time individual victims. So treason, bribery, other high crimes and misdemeanors is the final language. They don't invent this language out of whole cloth, right? It has these English antecedents. And it turns out it's kind of a term of art that had been used from the 14th century on in the English context, right, often to eject government officials. So high crimes and misdemeanors was often the term that was used to describe the conduct.

Right. Like if you're getting rid of an official, there's examples where that's the term of art and it means essentially abuse of power, right? Yeah, I think that's right. Abuse of power, abuse of authority, self-dealing, corruption, offenses against the state. All of that is, I think, kind of encompassed within the phrase high crimes and misdemeanors. You know, this is a thing that I've talked about a lot on the show. You've talked about in other contexts, not on my show because you won't come on my show, but partly contractually and partly just you don't want to come on my show.

Because it would be weird. Tiffany, she told me that she was like getting stalked by like a CNN booker. And I was like, absolutely not. Like what? I know. Absolutely. Are you kidding me? I was like getting stalked by like a CNN booker. And I was like, absolutely not. Like what? I know. Absolutely. Are you kidding me? I was just kind of feeling him out.

Yeah, go to us. I mean, it's one thing to be like, well, I can't go on another network. Anyway, this is a point that we made on the show, but I think it's worth reaffirming. That there are things that would be violations of the U.S. criminal code. Like if we found out that Donald Trump was in a gift shop and he just like stole $50 worth of stuff in his suit, which like wouldn't be the least plausible thing that's ever told me happened. Like I wouldn't be like, no way. I'd be like, well, maybe I could see that, you know, violating the law. That would be a clear like stealing $50 worth of stuff, shoplifting.

That's clearly a criminal infraction. It happens to people all the time. Winona Ryder famously owes thousands of dollars. That would not be an impeachable offense, probably. That's not a high crime and misdemeanor because it's even if it's a violation of law and it's criminal, it's not an abusive office. And then the flip side is that there's things you can do as president that don't like in a technical sense violate the criminal code of the U.S. government that would be high crimes and misdemeanors. And I think that almost everyone agrees with that basic proposition that impeachable offenses need not be criminal and that not all crimes are impeachable. So, right, there's just lots of things that violate laws, including federal laws, that I don't think people believe warrant impeachment. And obviously theft, traffic offenses, these are obviously local kinds of offenses typically. But even things like, you know, certain kinds of tax fraud are probably not grounds for impeachment. I would say like.

And those are serious offenses. Yeah, I would say like in my conception of this, and this is based on nothing but me opining, which is what my whole life is. But nothing new there. Let's say that we found out that Donald Trump had committed tax fraud in 2014 and 2015. I think it would actually be I don't think you should impeach him for that. Honestly, like I think depending on the kind of fraud, I think that's also true about post presidential fraud. Honestly, like I think it would depend on the kind of fraud. Of course, having not seen the tax returns, we have no idea. But I think that there could be... There's like a nexus with the office, I guess, is the point that I'm trying to make. And like, even though I think our instinct is to constantly refer back to the criminal code

or like crimes other people do, even in this case of bribery extortion, that to me, what's sort of singularly important here is in some ways, it's crimes that no one else could do. Only the president could try to extort ukraine into manufacturing during his political opponent i can't do that as a normal citizen right so there's this classic little treatise on impeachment from 1974 that offers a couple of examples of things that are obviously not crimes but that

most people would agree should at least potentially warrant impeachment and things like making a public commitment not to appoint anybody of a particular religion or a particular race to public office. He has the power to do that. And there's nothing criminal about it. And yet it is antithetical to core constitutional values of things like equality. Yeah. No Jews in my cabinet. Yeah. Yeah. Like, yeah, you could do that in the Constitution, but you cannot be president. Neil Katyal actually is a great example in this new book that he just published on impeachment that says if the president had his sibling murder his political opponent, brother does it totally of his own accord. And then the president just president pardons him.

Now, the president has pardon power, so he has the constitutional authority to do that. But I think that almost everyone would agree that that would warrant impeachment. And again, so he has these powers that he enjoys by virtue of the office and the abuse of those powers. In some ways, they don't violate the criminal code because we don't write laws that only target conduct that only the president can engage in. So that's one of the many reasons I think that focusing too closely on the specific provisions of the criminal law is a mistake when we're asking about impeachment. It's funny you say that because I feel like these thought experiments, you know, on some level they're hypotheticals, but they're also kind of the conceptual region that we now inhabit all the time, which is, you know, during the hearing,

they were talking about Ambassador Yovanovitch, who was a career foreign service official who had been dispatched to be the Ukrainian ambassador. And everyone was saying correctly, the president can hire and fire ambassadors. The president can recall an ambassador. Absolutely. But then my response was, right. But if it was because she refused to sleep with him, then I mean, yes, constitutionally could, but that would be an abuse of power.

Like you have to have a romantic relationship with me or I'm recalling you. We would all be like, okay, I guess constitutionally has a power to do that. But like, that's not cool. And in some ways it's like everything that fits in this category of like a thing that's unthinkable or a thing that like you constitutionally have the power to do but shouldn't or it violates something deep about the trust of the office is the category that we end up having impeachment deal with. Right. Well, that's true about presidents. Right. So the impeachment language in the Constitution applies to the president, vice president, and all civil officers of the United States. So we have this very small set of presidential impeachments in our history and a pretty small set of impeachments overall, but the overall set is, of course, larger. So we've impeached a Supreme Court justice and a cabinet secretary and actually a senator, although it's now very much the position that

you have to expel a senator if you want to eject a senator. Wait, a senator got impeached? Yeah, in the House, not removed in the Senate, then expelled him. I didn't know that. Yeah, no, it's one of the, so when the president started talking about how Adam Schiff should be impeached, and everyone was like, duh, you can't impeach a member of Congress. It was one of the

few moments when I was like, well, you know, he has a tiny bit of a point, which is at least the founding generation made the same mistake. They thought, well, like, yeah, that's how you get rid of an officer. Anyway, so no, he's wrong. By the way, there's an amazing little snapshot of the division of labor in our household. We're like, I have opinions and Kate has knowledge. But that's that's wild. So that actually did. There was a senator impeached. And a cabinet secretary and a bunch of federal judges. And so I think there've been something

like 19 impeachments overall. So, you know, 14 or 15 of a bunch of federal judges. And so I think there have been something like 19 impeachments overall. So, you know, 14 or 15 of them have been federal judges. A lot of them have engaged in bribery type crimes. But they typically get charged as high crimes and misdemeanors. But back to your point about why we go so often to the criminal code. So the president can't be criminally charged, right? At least that's the sort of largely settled understanding. But judges can.

And so some of these judges get charged criminally and then impeached. And so the way you describe their misconduct tracks the criminal offenses because they've already been either charged, convicted, investigated for engaging in this bribery type conduct. And so it makes sense that the impeachment language would look like the criminal context language. But of course, that's not the case with presidents. So the set of impeachments is a small one. We've got four impeachment inquiries of presidents, and we've only got two actual impeachments that happen. The first one, we did a whole podcast about it with Brenda Wineapple, who wrote that great book, which you and I have both read. And

there's a bunch of stuff that's interesting about Andrew Johnson. One is that like, they have to figure out the procedure. They have to figure out like, they're doing all of it for the first time. There's very little for them to work off of for precedent, even though there's been other impeachments or hasn't been a president. But there's one article of impeachment that is the most interesting to me that gets the least historical attention, I think, which is what you've been sort of writing about. Yeah. So I really feel like I want to hijack this podcast as like a little advertisement for

my law review article. No. Yeah. That's what you're here for. But so right. So I'm feel like I want to hijack this podcast as like a little advertisement for my law review article. No, yeah, that's what you're here for. But so right. So I'm writing this article. It's a real division in self-promotion. I'm blushing so hard. I'm writing this article about the role of speech in previous impeachment efforts. And so I started just kind of reading about impeachment history over the summer, which was obviously fortuitous because I'm now pretty steeped in at least the secondary literature. And I'm not a historian, so I've read some but not all of the primary sources.

But I was just curious how the Congresses that have considered and then actually taken steps to impeach previous presidents have thought about the president's speech and the role of presidential speech in those impeachment efforts. So the Andrew Johnson impeachment effort was, on its surface, largely about, and the articles focused on Johnson's violation of the statute called the Tenure of Office Act, which required him to obtain Senate consent before firing cabinet secretary. So he, in violation of the statute, fired his war secretary who he had inherited from Lincoln. He had been Lincoln's war secretary, Edwin Stanton. And so 10 of the 12 articles against Andrew Johnson really focus on that violation. But then two of them, and in particular the 10th article, are totally different. And the 10th article is really about Johnson's public speeches and in particular his attacks in public on Congress. He's accused of these intemperate harangues that are peculiarly indecent and unbecoming of the chief magistrate of the United States. That's in Article 10.

Intemperate harangues! They impeached him for intemperate harangues, literally. Yeah, they did. Among other things. So one of the, I think, kind of deep points that Brenda Wineapple makes in this book, The Impeachers, is the conduct described in Article 10 and Article 11. And so 10 is about his public speech and 11 is really kind of more broadly about his kind of thwarting of reconstruction. Right. That's a little bit more explicit in Article 11. But that those are the things he was really impeached for, that the Tenure of Office Act was an excuse and it was an error and a misstep on the part of the Republican Congress to try to sort of execute this narrow and sort of formalistic and legalistic impeachment rather than sort of forthrightly tell the country why they believe Johnson was unfit to

remain in office. But there are glimpses of maybe the true motivations that you can sort of find in articles 10 and 11. And so 10 is really the thing I focus on in that part. And some of the speech, I mean, just to be clear, like he was by all accounts a drunk. He was a demagogue. He would get up in front of crowds and his staff would try to stop him from getting up in crowds because he would get worked up and say anything, including when he did this disastrous tour around the country for the midterms, which is famously called the swing around the circle. He would get in front of crowds and they would yell at him about the massacres that had happened in the South against union loyalists and African-Americans. And they would say, you know, hang Jefferson Davis. He

would yell back at them. Why don't you hang Thaddeus Stevens? Like Thaddeus Stevens is a sitting member of Congress and the president of the United States yelling at a mob, like, why don't you hang Thaddeus Stevens, is, like, I would say even by the Donald Trump standards, probably more extreme than anything Donald Trump has said at this point. More explicit. I think that's right. I mean, it does feel like incitement in sort of formal legal terms, right? Sort of, you know, that kind of encouragement of imminent lawless action. And so he does this at a couple of stops on this swing around the circle. Interestingly, and I've never been able to figure this out, those sentences, like those particular statements, are actually not specifically enumerated in Article 10.

It's kind of the more general anti-Congress rhetoric that he has brought Congress, right, this co-equal branch of government, into disrepute. And the sort of unpresidential tenor of his rhetoric is very much what is being described in Article 10. And so those speeches are very much encompassed within it. There's some fundamental existential sense in which members of Congress and many people in the country think the guy is just fundamentally unfit for the office. And then there's an attempt to kind of find the sort of correct procedural legalistic pretext or predicate, I guess, for impeaching him. And I think there's a little bit of that with Trump happening, even though I think what he did with Ukraine is 100 percent impeachable.

The context here is like a deeper sense of the guys on fitness. There's also the sort of question about language. There's also, though, and I think this is another place to go in this sort of history, is that like impeachment always has been pretty partisan. Like this idea that we're in these polarized times and no one is persuadable. Like it was quite partisan in Johnson's case and it was obviously quite partisan in Clinton's case. And the one exception to the rule is the one guy who it worked on. It works in a sense. Right. Exactly.

Because he had to leave. Yeah. So Nixon is sort of hard to figure. You know, when we have this set, this tiny little set of presidential impeachments, well, we've never removed a president. And, of course, we didn't remove Nixon, although it's almost certain that he would have been removed in the Senate because he decided to leave before, you know, even being impeached by the full House. So it distorts the overall numbers, I think. But, yes, that is an example of a moment in which history seems to suggest that the country and the Congress transcended partisanship and kind of uniformly condemned Nixon's conduct. Although the fascinating counterfactual I think about, which you see people at the margins of sort of Republican conservative thinking talk about Nixon in retrospect, which is like,

yeah, I should have stuck it out, dude. Like, call the bluff, man. You know, make them count the votes, make them whip against you, tell them that they're going to destroy the party and they're going to destroy their chances in the next election. And like, you know, again, to me, what the theme here with impeachment is that you're sort of at the edge of what the law is saying. You're in some zone of norms, shame, democratic legitimacy, like all this stuff is sort of coming together, there's no like clear directive, no blueprint for any of this. Right. Like it does come down to politics and it does come down to the sort of like bunch of factors all operating in tandem. Yeah. And I think it's true that that has always been the case. Right. So one of the things I think that scholars of constitutional history tend to say about the framers is they get a lot right and they get some things quite wrong. And one of the things they get wrong is failing to anticipate the kind of rise of partisanship, right? The sort of importance of

parties. There's this idea that if you separate power between the branches of government, they're going to sort of by institutional role compete for power and authority as opposed to align with their co-partisans even across branches. And that's, I think, right when you look at founding era writing. But with impeachment, they seem actually always to have had a sense that it was going to be quite partisan. And I think that's why they create the supermajority requirement in the Senate for removal, because they make the choice to include impeachment. And they, I think, include it for a reason. And they don't include it so that it will never be used. Right. I think they fully anticipate

that under extreme circumstances, it will be warranted, but that actual removal should be limited to conduct that is able to attract a very significant supermajority of members of the Senate. I think there's a lot of things that are, there are some serious flaws in American constitutional design. I think the arguments from political scientist Juan Lins about presidentialism and how dangerous that can be, I think we're seeing play out. So all of that said, I do think like they're right about that. You know, it's a significant dramatic step. I mean, I had I had a Republican congressman on a show a few weeks ago was talking about how dramatic step it was. And it's like, yeah, it is. It is. I mean, it is. It is dramatic. But what you just said also sort of connects to another sort of interesting theme to me institutionally, which is about the relative balance of power between the two branches. In the case of Johnson, you've got this very strange situation in which because

the South has not been admitted back into Congress, there are these massive super majorities for the Republican Party in both houses and they're overriding veto after veto after veto. It's probably the absolute apex of congressional power in the history of the country, right? I think that's right. We now live in this era in which we have had the extreme growth of the imperial presidency. Like, how do you see this in the context of sort of balance of power between the branches? Well, to go back to Johnson for just a second. So, yes, I think it's right. Apex of congressional power. And obviously, you have the Republican Party dominating both houses of Congress.

Right. It's both. It's congressional power and partisan domination. Partisan domination. And yet they still can't remove him. That's a great point. But I think there are a couple of important buts, right? So one is the constitutional design at that time is a little bit different. And there's kind of this odd gap when it comes to filling a vacancy in the office of vice president, right? So Johnson becomes president when Lincoln is assassinated.

But until the 25th Amendment, there's no mechanism for filling a vacancy in the office of vice president until the next Wade. Benjamin Wade. Benjamin Wade, who's a pretty radical Republican, right, in the kind of Sumner, Stevens, Phillips school. And for the Republican Party at the time, it's dominant, but it is varied, right? So there's a real spectrum. There's a radical wing of that party, but they're not all Thaddeus Stevens by any stretch. And so some members of the Senate are sort of looking to that choice. And it's such a dramatic choice that they decide they're not going to sort of totally upend the kind of organization of power in government by installing this entirely different figure. We have a really different system today. Right. And I think that's something that gets a little bit lost. Right. So in the original Constitution before the 12th Amendment, you know, the Electoral College cast two ballots and the person who gets the most votes becomes the president and the second most becomes the vice president. And it's the dumbest shit ever. Well, because it was so dumb. It was a bad design choice. But you may want to debug that programming before you write all that. And so. Right. But of course, what it meant was the person who is the number two could be your political rival, could

be a member of a different political party. And and so when they put impeachment in the Constitution, I think they did this knowing full well that the person to whom the power of the presidency would pass if impeachment was successfully invoked and removal occurred was somebody who was picked totally separately, was not the president's handpicked number two, the way the office functions today. And then pre-25th Amendment, in a circumstance like the Johnson case, it would have been literally as though today, if the president were removed from office, Nancy Pelosi became the president. That's not at all the world we live in. We live in a world in which the remedy is so much less dramatic because all that happens if the Senate votes to remove is power passes to the president's handpicked second in command. Who has been handpicked precisely for the purpose of serving out his or her term if he or she cannot serve out the term. Exactly. So in some ways,

it's a far gentler remedy today than it was under the original Constitution. In this case, it seems to me that there is a really interesting fight happening. So there's obviously a partisan fight. I think there's an ideological fight. There's a political fight. I think there's a, you know, I'm biased here, I think, but I think there's a fight over like the actual substance and rule of law and like whether the president can do whatever the hell he wants, like rig the next election so that he wins. But there's also like an interesting Article 1 branch, Article 2 branch, like Congress versus the White House angle here. And as someone who sort of both studies this as a scholar and also worked in the White House as a lawyer, like where as a White House lawyer, you tend to be pretty like a jealous guardian of the president's power. How do you see what's playing out right now in

that context? I think you're right that when anybody who has spent some time inside the executive branch and maybe in particular in the White House, it sort of gets into your DNA a little bit, this kind of reflexive defense of presidential power. And I think that I've been gone from government for a bunch of years now, but I do still believe that it's important for all kinds of reasons to have a powerful president. But that doesn't mean an unchecked president. And I think the only reason we haven't seen more sort of unilateral presidentialism in the last three years is because there has been just such chaos and disorder in that administration and in the White House in particular, but they have gotten their act

together to do enough big things. I think that Congress has, through sort of inaction and paralysis, relinquished a lot of its less formal authorities in recent decades. So Congress passes laws, that's at the core of its Article I powers, but it does many, many other things, right? Conducting oversight of the executive branch is one of them, but obviously it appropriates and it holds hearings, the Senate confirms nominees. I mean, it does many, many things. I think that an important narrative of the last couple of decades has been, you know, you've obviously seen in these kind of inverse trajectories of kind of an ascent of presidential power and a decline in congressional power. And I actually

think that whatever the next couple of months bring with respect to this impeachment, and it does seem like unless something very dramatic shifts, the most likely course is impeachment in the House and acqu is impeachment in the House and acquittal in the Senate. It has still been an important reassertion of congressional authority that the House has initiated and the way it has conducted these impeachment hearings so far. I think that it has enormous symbolic consequence to impeach a president. And I think Donald Trump appreciates that. Right. So you saw this tweet a couple of weeks ago. You know, what was it? I never thought my name would be associated with that ugly word impeachment. They impeach me like a dog. But he doesn't want to be impeached.

Right. So, you know, people argue about whether this will help or hurt the president politically. I don't know the answer to that. But even if in some universe it helps him politically, he does not want to be impeached. He absolutely doesn't want to be because this is going to be an asterisk next to his name forever. Right. As the fourth president to have these serious impeachment proceedings begun in the third president in American history to have been impeached. I also think that there was this unified position of noncompliance with congressional subpoenas and oversight requests during the early days of post-2018, right, when the Democrats took control of the House. And, you know, it starts to normalize this idea that you can simply ignore requests from Congress if the White House and other executive branch agencies just refuse to respond to congressional inquiries and even congressional subpoenas. I think just the last few weeks, all of these officials acting on their conviction that law requires them to show up in response to a congressional subpoena, you know, sort of

hardens the lawness of congressional subpoenas. The proof of the pudding is in the eating and that the practice, the concrete example and the practice of people showing up even when they are political appointees of the president, which is in the case of Gordon Sondland somewhat remarkable. I agree. That practice has a kind of legal effect or it has a kind of effect about what Congress's authority is in a sort of precedent or norm setting way. I think that is true actually broadly, but it is certainly true when it comes to disputes between the political branches, between the executive branch and Congress, is that it's very rarely courts that announce what the law is. There are disputes that occasionally make their way to the lower courts. Even more rarely, they make their way up to the courts of appeals or very

rarely to the Supreme Court. But most of the time, these disputes get resolved through accommodation and negotiation and practice. And those practices kind of harden into law. At least players in these systems believe themselves to be bound to a degree. I mean, sometimes they will say we want a definitive judicial ruling, but it's pretty rare that that happens. And much of the time people conduct themselves under sort of the legal regime that is developed outside of courts. And so I do think that there is important precedent setting function that just the last couple of weeks of witness testimony has created. Well, this is what's so interesting about the showdown right now between the White House and Congress on a variety of fronts in terms of subpoenaing of witnesses and of documents. Right.

So like it's maybe a funny metaphor for me to say in this context, but like the thing about marriage is, the thing about marriage is what makes a marriage amazing and also sometimes difficult is that like, there's no third branch to go to. Like, it's just the two of you. You work it all out. You don't get to go for a ruling.

And if there's conflict or there's like beef, you got to just like work it out. There's not like in a workplace where it's like, maybe there's a boss or something like. And in some ways it's like they're in a marriage in a weird way, like the presidency and the Congress. They have to kind of work it out between each other. And as it's breaking down, they're like running to this sort of third entity more and more because they can't work it out, partly, I think, because of how sort of implacable the obstruction has been from the White House. But now it is before the courts and there's not actually a huge body of law on this precisely for that reason. Right. So when I said the Congress has sort of relinquished a lot of its less formal authorities, one example of that is that it used to sort of exercise what's referred to as its inherent contempt power. So if a witness refused to show up to testify or produce documents, it would directly hold that witness or individual in contempt, impose fines, actually imprison in a cell underneath the Capitol individual. Isn't there also like the last time was like in the 1931, 1935 and they had like some dude in a hotel room? I think that's what it is. I'm just making that up.

We'll fact check it later. We'll leave it and we'll take it out. Either way. It is 35. I think that's too good to check. We're right. I'm just making that up. We'll fact check it later. We'll leave it and we'll take it out. Either way. It is 35. I actually don't know. I think that's too good to check. We're going to put that down as too good to check. They don't do that anymore.

And I don't think anybody really thinks they should revive the practice of sending the sergeant at arms to actually seize witnesses. Oh, my God. John Bolton with a handcuff to a radiator. Such an amazing image. I mean, there are people who are suggesting that Congress should really do it. I don't see it happening. Such an amazing image. have shown that Congress can actually do a lot without recourse to the courts have been important. And yet, as you say, there are these high stakes judicial disputes that are playing out now. So we have this ruling that this legal argument that the Trump administration has made that certain high level White House officials enjoy absolute testimonial immunity, that they don't even need

to respond to congressional subpoenas is, you know, without any real basis in law or logic that everything in our constitutional tradition and constitutional history and the limited Supreme Court precedent on this question makes clear if the president is not above the law, then his advisors can't be. And so that's the ruling out of a district court in this Don McGahn case. And then there are a couple of rulings in, you know, these formally unrelated, conceptually sort of related cases involving the president's taxes in which the lower courts have also said pretty categorically that these arguments that the rules don't apply at all, that, you know, would ordinarily require document production of a third party, that they don't apply at all because the president is involved. And that's essentially the argument that the White House has been making. Right. So there's so let's talk about. So there's three cases. One of them doesn't have to do with Congress. It has to do with the Manhattan district attorney who's seeking the president's taxes as part of the pursuit of an investigation. The president's actual lawyer,

William Consovoy, as opposed to his like fake grifter lawyer, Rudy Giuliani. But like Consovoy like actually gets I mean, to the extent the president pays anyone, I don't know, but he actually gets paid and he actually writes legal briefs and does legal work. He's the one who made this insane argument that like, you know, if you shot someone on Fifth Avenue, you couldn't investigate him. Let's sort of take that aside for a second because it doesn't quite play to this like direct institutional question about the two branches. There's Judge Katonji Brown Jackson's decision in the district court, which basically was over the matter of whether Don McGahn could be lawfully subpoenaed by Congress. She writes this 120 page opinion that's like absolute – like he definitely can be and has to show up.

And I think this is an interesting conceptual point. Like she says this idea of absolute immunity is nowhere in the Constitution. It's nowhere in our legal tradition, the idea that you can block people. Now, there are privileges that obtain and basically she clears the path for him to show up and say, I'm not answering that question and invoke executive privilege. But one of the things I think that it's a technical point, but important one, the White House hasn't even done that. Like there is executive privilege and the scope of executive privilege is the subject of a lot of debate. And it's unclear who adjudicates that in the end. But they haven't gotten to that point

because even before you get to that privilege, they're just saying, like, no, you can't talk to these people. Right. It's just inconsistent with there's a there's limited case law on it, but none of these privileges are absolute. And there's no real authority for the proposition that you don't have to show up at all to negotiate over what are and are not permissible subjects of inquiry. And that's basically the ruling there. Of course, that's going to be appealed. Then there's the Mazars, which has now gone through two levels of the federal courts. District court saying you have to hand over the documents to the accounting firm. Right. So Trump intervenes to stop the firm from handing it over. They say you have to hand it over. And then a three judge panel on the circuit court affirms that district court opinion. That's also going to now be petitioned

to the Supreme Court, which they're going to hear in a few weeks. Well, they're going to consider whether to take those cases in a couple of weeks. Yeah, there's a good chance they'll take at least the D.C. case and maybe even the New York case as well. Let's talk about the law there, because it just seems to me like it just seems crazy to me in terms of the Constitution that if Congress says we need to investigate the president's finances, that the president can be like, no, you can't. Like, that just seems nuts to me. As just a basic question of like, I would personally like to know

if like the Saudi kingdom pays him $50 million a year in bribes. I don't think that's the case, but like I would like to definitively rule that out. Same with the Turks. Like there's all sorts of things that I think I would like to definitively establish about the president's finances. And it just seems nuts to me to set a precedent that Congress cannot get those documents. Well, so it's tricky because they haven't really explained what they're doing in those terms. They haven't said we're investigating

the president because we want to know if he's taking bribes. Because this whole power of oversight or inquiry, that's the power that Congress is exercising when it is doing this sort of thing. It's not explicitly in the Constitution. And there is no oversight. The word oversight, it's just not there. And yet the Supreme Court from very early on has said the power of inquiry is an important adjunct to Congress's enumerated powers, the sort of heart of which is lawmaking. And so typically when it engages in some kind of fact finding, it explains that it is doing so in order to inform its consideration of passing laws or of overseeing agencies. You know, it links up what it is doing often again to specific to lawmaking. So here it said something

like we're thinking about passing some ethics laws that apply to the president. And so we kind of want to know what these tax returns show to inform our consideration of lawmaking. Judge Rao. So Judge Rao on the D.C. Circuit dissents from that majority opinion. She is a Trump appointee who filled Kavanaugh's seat. Right. Like all of these judges, Federalist Society, conservative judge who went through with McConnell's stewardship. Yeah. And I think is now almost surely on Supreme Court shortlist in that administration. And she writes this long opinion that says basically what Congress is trying to do is they're saying they're thinking about lawmaking, but really they're trying to investigate. And that's a law enforcement function.

And Congress is not a law enforcement entity. That's law enforcement is executive is an executive branch function. And part of that proposition is true. Of course, Rao and other sort of conservatives of her stripe think that you can't have any kind of independent authority inside the executive branch that would investigate the president. So it's a little bit of sort of heads the president wins, tails you lose. It would be especially fun if she makes the argument that like Cy Vance can't have them either. Right. She doesn't have that case, but she probably would. But so what's weird about her dissent is she says, you know, it's improper. They're thinking about laws like that's not really what they're trying to do here. And there's a constitutional mechanism for investigating presidential misconduct. And that is impeachment. And so it's this weird opinion because she writes it a couple weeks ago when we were already in this phase of the impeachment inquiry. But the request stems from some months ago. And so the kind of facts on the ground when this congressional

committee made its request to Mazars were very different from the facts now, which is the one reason I think the Supreme Court might not take this case, because they would be arguing in the abstract about Congress's power absent an impeachment inquiry to request these kinds of documents. So maybe they refile a request that explicitly ties the interest to the impeachment inquiry and that changes the calculus. But those are that's basically the universe of arguments in that case. I mean, again, I'm playing sort of like ignoramus blowhard here. But it just seems to me like we're considering a law to make the president disclose his taxes,

which we don't have in the books. And good God, we should. It has been habit and practice. We should just do it. We should know what the president's income and accounts are. We should know who he owes money to and who he gets payments from or she. And we're going to do that. And like, here's what we're doing is the fact finding for our legislative purpose to do that.

It just seems like how could that, you know you know again all this stuff at a certain level i'm really cynical about higher courts and sort of vote counting and legal realism and i think that ultimately we'll see i mean i think it's like they think they can count to five in the spring court for everything and that's why they're rushing to get up there and that's also why they're making frankly like pretty ludicrous arguments in a lot of these cases and i that's not coming from me that's coming from the the judges of first impression who keep getting the cases and being like, they haven't been ruling like, well, you've got a point here. It's been like, this is pretty ridiculous. Yeah. And not just judges, but, you know, kind of like lawyers of all ideological strides

have thought that some of the arguments made by the administration, by White House counsel Pat Cipollone, in some of his correspondence with Congress, in some of these briefs and in the New York case. They're just not particularly defensible legal positions. And that's why I retain a little bit more idealism about the Supreme Court than you do. But it's hard for me to see Trump counting to five in either of these cases. But I could be eating these words. Well, so that point about what the approach is here.

I mean, Charlie Savage's piece in the New York times today that basically says like they keep losing in the courts, but they're winning because they're delaying. Right. Right. Like the key point is they keep getting the stays and it's hard to explain all these mechanisms. And again,

like my mastery of civil procedure is terrible. No, it's, it's very good. It's no, it's not good. Well, I mean,

it's fine for a layman, but, but, but the point is that like they keep losing, they keep getting stays like it's, it's just, well, and that's why no one's gotten the taxes yet to take this back point is that, like, they keep losing and they keep getting stays. Like, it's just... No one's gotten the taxes yet. To take this back to impeachment, that early on, I think

that Schiff seems to have made the decision that he will work with the universe of information that he's able to obtain without any judicial assistance. And I'm not sure, it may be that Nadler holds a different view or maybe Nadler's on the same page about it. I'm not sure. But in addition to all these substantive calls they have to make about going broad or going narrow, to go back to our earlier conversation, they have to make this procedural call about whether it is worth trying to get some expedited judicial resolution of some subset of these legal questions in time to include some of this material potentially in articles of impeachment or whether they just cut their losses in the courts and say it's too resource intensive

to try and too time consuming and who knows what we get at the end of the day anyway. And maybe they are pessimistic like you about what the Supreme Court is likely to do. And so they just say we're going to work with what we have. And we have a lot, right? Like we haven't, I don't know that we've said much about that, but I definitely do think that there's a lot that has already been produced in conjunction with a couple of weeks of hearings. Well, so that's you know, there has been a tremendous amount of facts entered into evidence about Ukraine. I mean, the president knew about the whistleblower complaint when he answers the phone in a bad mood, according to the testimony of Gordon Sondland and barks at him like, I want nothing. I want nothing. I want no quid pro quo. I want nothing, I want nothing.

That's the, someone turned it into an emo song that we played on the show. It was very funny. Oh, I missed it. Yeah, and also a Ramones song. Will you play me that clip later? I will play you that clip later, yes. Special bespoke internet curation I need to do for my spouse. So, you know, there's just a huge amount of facts.

And again, I think I know the answer to this. I know I have my opinions. And this is an area that, you know, this is less a question of law and we're just like following it. But like, he just seems dead to rights on the facts. Like they did what they did. It was an extortion. It was a quid pro quo. It was whatever you want to call it. Like, and it was done at a fairly systematic level involving a whole bunch of people. And they were kind of embarrassed and sketchy about it is my basic takeaway from the testimony. Yeah. And if you to connect it back up to the discussion we were having at the beginning about the ways that the folks who drafted the Constitution thought and talked about the kinds of offenses that would warrant impeachment. And I should say I don't think that their views are fully controlling. Right. Absolutely. Kind of question about what the Constitution means. But I think it's always interesting and helpful. And I don't think anything in the intervening couple hundred years undermines any of this, but that it was always about offenses that are in their nature political, that as we were talking about, can only be committed by virtue of holding the office

of the president. There's also all of this conversation about undue foreign interference, the tenor of some of which feels really sketchy, actually. Like, we don't want foreigners having anything to do with us. And yet this idea that they were worried about foreign entanglements sort of corrupting a president whose sort of primary loyalty, right,

should be to the United States, right, to the national interests. And that's, you know, the places that I thought that the testimony in the last couple of weeks was the most powerful, Fiona Hill, Bill Taylor, places where everyone seems to agree that this scheme of trying to induce these political investigations and using this White House meeting and military aid as leverage for doing that were corrupt and self-interested and placed the president's self-interest above the national interest.

But there are also places where the testimony seems to suggest that they materially hurt America's national interests. And that, the idea of being willing to undermine American foreign policy interests, national security interests, in furtherance of personal sort of political objectives, feels like it gets very close to the core of what the impeachment procedure was designed to target. There's also something really interesting about the testimony to me, which was this is like a nerdy interest of mine. And it's a nerdy interest that I don't actually have much knowledge on. But, you know, that's part of the course.

But basically between the Civil War and through Teddy Roosevelt, there's like a civil service revolution that happens in the United States federal government. And prior to that civil service revolution, like it's wild how corrupt all of it is. Basically, the president is like appointing individual like postmasters, which is like the post service, like the big part of the federal bureaucracy. And the president just gives them out the way that a Chicago mayor boss would give them out to the supporters. And it's like a great job. And like you just get it to supporters. And basically you come into office as the president with like a huge satchel of jobs.

And then you take that satchel of jobs and you just give it to your loyalists a la Boss Tweed. And that's essentially the way the entire federal government works until the sort of middle of the latter half of the 19th century when there's a series of civil service reforms. Yeah, I think the big Pendleton Act is like in the 1890s. Yeah. So things really changed. And there's a bunch of changes. But ultimately what you get is this distinction between politicals and civil servants.

And a lot of those people that testify were civil servants. And part of what was fascinating to me was civil servants and civil service reform and all that stuff is like a little obscure and a little arid. But like you were seeing the importance of it to the functioning of like a modern state under the rule of law. Bureaucrats, civil servants, people that are not just like essentially tribally loyal or in a monetary sense loyal to like the party bosses running the country who are just there to kind of like serve the national interest across various administrations.

That is a really important feature. And it also feels like in an existential sense, that's a little bit what's on the table right now, because the president's people are arguing like, screw these bureaucrats. The president sets the national interest. And if the president says that extorting dirt on his on his opponent is in the national interest, then it is by definition. And who the hell cares what George Kent has to say? Right. And I think maybe Kent in particular was sort of doing this thing that I think is responsive to what you just said, which is that he sort of says, and Yovanovitch very much says this, you know, one of the things that we do is to promote rule of law values and, you know, kind of the apolitical enforcement of the law, in particular when we're talking about criminal investigations and prosecutions, but just in general, that a lot of the functions of government should be done in an apolitical fashion is a value that we are trying to instantiate throughout the world. And when we are sending from the very highest levels, a message that runs directly contrary to that, we have absolutely no credibility. And in some ways, they're up here

performing that value of impartial. Now, they're not prosecutors, but they're performing this value of impartial enforcement of the law, or at least impartial promotion of what they understand to be the national interests of the United States. And these are the official goals, right, to support these anti-corruption measures in Ukraine. That's not their personal hobby horse, right? That is the considered and articulated and public position of the United States government. But the president didn't come in and try to officially change that position, right? And if he had, I actually believe these civil servants would have carried out their directives in the same way that they might have disagreed.

But if there had been an official policy change, I do think that they would have carried them out. And that, I think, is what they're sort of demonstrating. But absent that, all this looked like was this, you know, whatever domestic political errand, I think is how Fiona Hill described it, that that had nothing to do with the national interests of the United States. And you know what? The president didn't want to run this through the ordinary policy channels. Right. Because he understood and the people closest to him understood that it was wrong. actual proof that they would if he had reoriented American policy in a sort of official sense, like North Korea policy turned hugely 180 on a dime, essentially. And there's a million civil servants who had to go and work and set up that summit. Now, some of them, I think, probably thought this is pretty nuts. I don't think we've done the groundwork for this. But they went there

and they said did the legwork for that summit. And there were translators and there were subject matter experts and there were regional experts, all of whom put their shoulders to the wheel to make sure that the summit with, you know, Kim Jong-un happened. Same thing with northeastern Syria and the withdrawal there. Like, you know,

there was a lot of yelping about it, particularly by folks who are retired and some people, you know, from the armed services on the record. But like, ultimately, when the president has made these decisions, even when they've run anathema

to what I think a lot of people like, people do do the president's bidding. Yeah, they carry that out. The other thing that, you know, that one thing I feel like we haven't talked really about is just that the scheme was about and the misconduct is about, and this ties back a bit to the founding era history, but it's about an election, right? It is about interference in some sense with an American election. And that also seems like a really important factor when you're sort of evaluating how serious the misconduct is, how it tracks the purposes of impeachment, right? So there's this great George Mason quote. So this is when they're early on in the convention,

they're discussing whether even to have impeachment for the president at all. And he says something like, shall the man who has practiced corruption and by that means procured his appointment be suffered to escape punishment? Right, because if all you have is election four years later, what if somebody gets in there through corrupt means, right? Impeachment is the only out.

And that seems like a critical fact about this, that the purpose here was to obtain some kind of advantage in this looming presidential election. And I can state just like descriptively as someone who talks to members of Congress a lot that that's what got them on board. The thing that made it possible for there to be the votes for this, which there weren't for a long time, was evidence that like, oh, he's trying to rig the next election. If you do not do everything you can to send the message that that's not OK, he will use his powers to try to rig the next election. And the president's very powerful and he's very powerful in foreign affairs. And he has a bunch of irregular channels already established with the Saudis and with the Turks and God knows who else.

And like if that was the thing that got on board, they did not want to do it. Nancy Pelosi didn't want to do it. House leadership definitely didn't want to do it. And the frontline members in those 40 seats didn't want to do it. And the thing that converted them was precisely that. It was like, this is break glass stuff, because if you let him get away with this, I'm like, we can't have a free and fair election. And what's so deeply disturbing is the president's continued insistence that this was a perfect phone call suggests to me that he thinks the conduct was OK, that he has engaged in it previously, that he will engage in it again, right? It was a perfect phone call. I did nothing wrong. And that, I don't know if it's affecting

the thinking of members of Congress, but from the perspective of the imperative of doing everything possible to communicate the seriousness of the violation, that seems critical. I think that's probably the most important lesson all here. So I would go another hour, but I think we'll take the second hour offline. Perfect. Take it back to Brooklyn. Kate Shaw is a professor at Cardozo Law School. She is a legal analyst and commentator for ABC News. She's the co-host of the fantastic podcast, Strict Scrutiny, which I love and listen to, not out of any sense of spousal obligation, but because I learn a ton from it. So you should definitely check that out wherever you get your podcasts.

She's the love of my life, the mother of my children, my favorite human being on Earth. You need to cut out one of those. And we've been together since we were 19 years old. And it was so great to have you back. Come back anytime. You can also come to my show. Maybe I will one day. Okay.

Thanks, babe. I'll see you tonight.