Strict Scrutiny - Dude Process

Episode Date: February 15, 2021

Kate and Leah do a “snap” episode on the most recent impeachment proceedings. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Kate Shaw. And I'm Leah Littman. And today we're going to bring you a short episode that is mostly an opportunity for us to debrief and maybe get a

little bit of catharsis on the impeachment trial of former President Donald Trump that just wrapped yesterday. So we're recording on Sunday morning, and yesterday the Senate voted 57 to 43 to acquit former President Trump on the single count for which he was impeached in the House. That's incitement of insurrection. The Constitution requires a two-thirds supermajority to convict in the Senate, so that'd be 67 votes. And the House impeachment managers who were prosecuting the case against President Trump fell 10 votes short, although still securing seven Republican votes to convict, pretty significant in that in history, there had only ever been a single vote by a member of the president's own party to convict on any article of impeachment. And that was Mitt Romney, who voted to convict on one article the first time President Trump was impeached. Okay, so maybe let's start with some big picture stuff, Leah.

What do we think this acquittal means, knowing that we're just a day out from it, and it's going to take a little while for its full meaning to become clear? So a part of me was glad that it wasn't a vote that was entirely along party lines. But I am still left wondering about whether there was enough accountability to prevent this from happening again in the future and even worse. You know, just looking back on, you know, for example, like white nationalist violence in the aftermath and even precursor of the Civil War. You know, I think historians have written about how the lack of accountability for early acts of violence spawned further additional, more egregious violence. And it's hard to see an ultimate acquittal as real accountability. I think Eric Trump tweeted out after the vote, you know, to nothing as if this is somehow a great victory for the president and his supporters. done by way of understanding exactly what happened in the lead up to January 6th and what enabled it

and also in holding those responsible for the attack accountable. But there was at least something that came of the impeachment trial. Yeah, I agree with all of that. I think that, you know, in addition to looking to U.S. history, I think that scholars who study the rise of authoritarianism or democratic backsliding globally do point to the fact that it is often the case that a first attempt at attack on democracy is unsuccessful, but that it can create infrastructure and momentum for future successful such efforts. And so I do think that there's something deeply concerning. If you think of this as a first real attack on democracy in, you know, this modern era, and I don't mean just the January 6th attack, but, you know, sort of the lead up to

it and January 6th as the culmination. So I do agree it's deeply concerning, but I also agree that there is something really significant about the condemnation expressed in the seven Republican votes to convict in an incredibly polarized time in which it has been for four years very difficult to find a lot of voices in the Republican Party that would squarely condemn President Trump's conduct and rhetoric. You know, and in terms of impeachments, you know, we haven't had a lot of presidential impeachments. And each of them comes to stand for a set of ideas or principles, right? So Andrew Johnson, the first presidential impeachment in 1868, you know, he comes within one vote of being convicted in the Senate. So he manages to escape conviction, but just by the skin of his teeth. And there's all kinds of questions about whether there was bribery and corruption afoot in one or more of the votes to acquit. But in any event, he gets acquitted. So that's a vindication in some respects.

In terms of what it means for Johnson personally, he's very politically wounded by the process and ends up not even securing his party's nomination to run for president later in 1868. So it does very much adversely impact his own political future. And so that's, I think, really significant. And I think kind of helpfully illustrates the point that it's not just a binary conviction or acquittal, and acquittal is always a complete vindication and a victory on the part of the non-convicted president. If we're just talking about presidential impeachments, of course, impeachment can happen for other officials. But what we're interested in here is a presidential impeachment. But in addition to Johnson himself, like what the Johnson impeachment came to mean, I think

for a lot of years, it was viewed as something of an error or an overreach on the part of the radical Republicans in Congress who, you know, they attempted to overreach to assert, you know, excessive amounts of congressional power at the expense of an appropriate understanding of presidential power, or that it was, you you know about a triviality right the main thing for which Johnson was impeached was a violation of a statute called the tenure of office act which required him to get senate consent before removing a cabinet official later in a different case the supreme court essentially sides with Johnson that is unconstitutional to constrain the president's removal power that way I mean so all these things I think for a long, in part led by a racist school of historians who wanted to vindicate

Johnson, who really had been seeking to uphold white supremacy in the South, or in the country at large. But so that was the narrative for many years about the Johnson impeachment. But I think that that has come to change. I think there now is an understanding among at least a lot of people that it actually was totally appropriate to seek to use the mechanism of impeachment and removal for Johnson, who posed an existential threat to the future of a real multiracial democracy, and that maybe they framed it in imperfect ways, these, you know, the impeachers, the drafters of the first ever presidential impeachment, but that the purpose was totally proper. Anyway, so it's a

long way of making the point that the meaning of an impeachment can change over time. And that also that sometimes we indulge in these kind of counterfactuals with impeachment. So Nixon resigned before he could be impeached, but there were articles of impeachment that had been approved in a House Judiciary Committee at the time that he resigned. And it's broadly understood that he would have been impeached and removed had he not resigned and foreclosed that possibility. And so the fact of the timing of his resignation is understood not to reflect that he's not an impeached president, but that he's a president who would have been impeached and removed had he not left office when he did. So I wonder whether there's a way that these events in some way stand for a similar idea,

potentially, that had he been impeached and tried in the Senate prior to January 20th, he being former President Donald Trump, obviously, there's a very decent chance that he would have been convicted. And so there I think that both the fact that there were the seven Republican votes and the fact that, so Mitch McConnell, who voted to acquit but gave a pretty scathing set of remarks after his vote that make clear he holds President Trump fully responsible for the events of January 6th. You know, had McConnell not decided to sort of, you know, gerrymander the timing such that the trial happened after January 20th, if it had somehow occurred prior to the 20th, would there have been, you know, McConnell and another, could he have brought another nine Republican votes with him so that there would

have been the 67 to convict? It seems like there's a very real possibility that that's the case. So one way to understand these events is Donald Trump escaped conviction by virtue of the timing of the trial. That's only one way. And obviously, I don't mean to sort of exculpate Mitch McConnell in this. He made the choice to delay the trial and thus use the timing of the trial. That's only one way. And obviously, I don't mean to sort of exculpate Mitch McConnell in this. He made the choice to delay the trial and thus use the timing of the trial as cover to vote to acquit. So none of his conduct was laudatory at all here. I just wonder whether there's a way to understand the events in the way I just described. Is that plausible? What do you think? So I am not nearly as optimistic as you all, and I would not say even a sliver of the positive things about the Mitch McConnell speech, given that I think

the real problem is that many people saw this really building up until January 6th. Mitch McConnell did nothing to stop it, including refusing to acknowledge Joe Biden as a rightful winner of the election, dispelling that narrative and doing anything, you know, to constrain the kind of anti-democracy fervor that was rising. But I think what this impeachment comes to mean is entirely contingent on what happens next and what happens now. Will there be, again, further investigations into what happened in the lead up to January 6th?

Will there be actual accountability on any of the people that enabled this? What is the political future of, you know, various people within the Republican Party who participated, you know, in some form or another in propagating this narrative and, you know, allowing January 6th to happen? So I think that what it means is unclear. I am not particularly optimistic, absent, you know, some major refashioning about the electoral structure that, you know, also enabled some of this. Yeah. So let's stay for a beat on this question of so what what happens next in terms of potential accountability. So there are a few different venues in which that additional accountability or, you know, genuine accountability might come. Right. So one and I'm not sure this is more about kind of the historical record than personal accountability for former President Trump. But one thing that was really clear in this very abbreviated trial was that there is just a ton we don't know about even January 6th itself. So Representative Ted Lieu, one of the House managers at one point,

you know, said, or no, maybe this was Castro, said, like opened his mouth and said, you know, there's a lot we don't know about January 6th. And I found that like a little bit hard because it was like, well, you guys have made the choice to proceed in this expedite fashion that doesn't involve fact finding or witnesses. We will talk about witnesses in a minute. So let's put a pin in that. But anyway, the managers themselves conceded. There's a lot we don't know, even in the very thorough factual presentation that they gave. And so it just seems really clear there needs to be a very rigorous congressional investigation that involves speaking to witnesses, reviewing documents. There are many, many knowable facts that I think I still don't totally understand why they were not run to ground

prior to this trial, but just little things like that, that even if privilege and other kinds of obstacles might make it difficult to actually get witness testimony from the people who were the senior White House advisors who were around the president who might speak to what he said and did during the minutes and hours of the siege of the Capitol, it's worth pursuing all of that, but there may be obstacles to actually forcing people to provide that information. But on the other side of some of these exchanges, the Department of Defense, you know, this acting Secretary of Defense put out a statement, right, sort of in the middle of this siege, indicating that he was calling up the National Guard and had consulted with Vice President

Pence and congressional leadership. And of course, everybody noticed the conspicuous absence of President Trump from the list of individuals with whom he had spoken. But there are records at DOD about what phone calls and conversations happened and who had what. And none of that should be remotely difficult to access. You can subpoena any of it. They're no privilege concern.

I mean, I suppose you can make the argument, but I'm not really worried about the argument winning. So that secret service also should be a font of information about what exactly was known to the protective detail around the president and the vice president and when and what communication happened between them. I don't see any real privilege objections there either. And certainly no privilege objections about conversations between the president and other members of Congress. Well, it's interesting, like an inter-branch privilege like that. I mean, the presidential communications privilege could, in theory, I think, I'm not sure if it's ever come up in court.

I don't think it has as between a member of Congress. Certainly with senior White House staff, you imagine that they would raise presidential Yeah, no, I'm not talking about anyone within the executive branch. I just meant, for example, a conversation with a senator or a congressional representative. Yeah, I think that's absolutely right. And in some ways, you know, could the president try if those members are willing to speak anyway? I just can't imagine where a privilege objection would even be raised.

But it's so so there's just a lot of low hanging fruit in terms of the things they could easily get. I understand they didn't want to litigate some of these difficult witness questions or testimony questions. But all this to say, some kind of serious congressional commission that is charged with, right now there are like four different congressional committees that each has inquiries out to various executive branch entities and local law enforcement in D.C. And it just feels like it needs to happen in a coordinated way as opposed to dispersed across a bunch of different committees. And it needs to be done, you know, with seriousness and funds attached to it and on a timeline that is aggressive enough that memories won't fade, right? Like they need to

start talking to people now while everyone's memory is fresh. So anyway, so that seems like something really important. And I think that it's important that congressional leadership actually make clear that that is something that they're going to pursue like now. And then, of course, there's the question of criminal accountability. Like where what do you think the prospects of criminal charges, state or federal, against former President Trump look like right now? I don't think there will be federal criminal charges against former President Trump. You know, there are currently right now reportedly state level investigations into the president's attempt to strong arm. You know, we talked about the Georgia secretary of state into finding additional votes um

i i don't ultimately think that that is going to happen either um and those events you know as we said are not really about january 6th in particular but instead about the larger narrative and so i think part of what i would like to see is, you know, more digging and a comprehensive report or narrative emerge about how the, you know, quote, big lie about the election being stolen, or the existence of voter fraud, or, you know, that entire spiel influenced the organization of the rally, the behavior at the rally, the funding of the rally, and so on, because I think that that is really important to understand, like, who bears fault and responsibility for what happened on January 6th. And so we can, again, ensure,

try to ensure that this doesn't happen again, because you can say, like, look, last time you were feeding this lie about the election being wrongfully stolen and encouraging people to do X, Y, or Z. This is what happened, and here are the people that did it. I think that that would be really important. And so that would be something that I hope happens. Yeah, I agree with all that. I mean, maybe one thing that we should have mentioned when we were talking about further proceedings in Congress is something that has been out there, has been discussed, is actually cited in the article of impeachment as the third section of the 14th Amendment, right, which would allow the disqualification for someone who participated in or aided in insurrection from holding future federal office.

And, you know, it seems maybe one of the purposes of this commission is to consider, you know, the factual predicate for actually, I think you'd probably need to pass a statute specifically identifying President Trump for disqualification in order to invoke this provision of the 14th Amendment. So that might be, you know, one purpose that the commission could set out, at least to explore. I think that is something that I would like to see 14th Amendment conversation not just sort of fall away because we are through with this impeachment process. And, you know, in terms of federal inquiries, I mean, I wonder whether I think you're right. Federal criminal charges don't seem likely.

But I wonder whether given sort of how much really deeply disturbing new information about the specific events of January 6th, you know, did emerge. But whether like a Biden Justice Department would at least consider, you know, like a special counsel, like to investigate any sort of senior, sort of senior governmental involvement in the events leading up to January 6th. Like, I wonder, you wouldn't want to do it through ordinary Justice Department channels. I think it seems like the sort of thing that would be appropriate for the appointment of some kind of special counsel. But I would hope that they at least consider doing something along those lines. Like, there has been a suggestion of extraordinarily serious high-level misconduct by government officials, and, you know, specifically the highest government official. And that's, it seems like not to even

consider the possibility that the criminal law is implicated would be a mistake, even at the end of the day, if it feels as though criminal charges are just not going to be brought, which I do think is probably the result. But it just feels like some serious consideration should be brought to bear on the question. So maybe we can switch now to talking about some of the particular substantive arguments that came up during the impeachment trial. So one persistent argument, you know, that at least superficially senators insisted motivated their votes to acquit was this argument about jurisdiction and specifically whether the Senate had the authority to conduct an impeachment trial over someone who was no longer a federal official.

That was, as you noted, you know, Senator Mitch McConnell's stated basis for casting a vote to acquit. You know, the Senate as a body took an initial vote on whether they had the authority to try someone who was no longer in federal office and concluded that they did. That is the same outcome that the Senate reached, you know, more than a century ago when they decided the question about whether they had the authority to conduct a trial over former Secretary of War, William Belknap, who was no longer a federal official when the Senate conducted the trial. comprehensively and others have concluded you know that text history and you know particularly historical practice and all of the structural reasons why we have the impeachment power would allow the senate to conduct a trial for someone who's no longer in federal office um but the the one point that i wanted to make on this jurisdiction argument and you were alluding to it earlier when you talked about senator mitch mcconnell's gerrymandering, is just that this didn't have to be the case.

That is, the Senate didn't necessarily have to try the impeachment proceeding after Donald Trump left office. You know, after the House voted to impeach, Speaker of the House Nancy Pelosi wanted to transmit the articles to the Senate and have the trial conducted before Joe Biden became president. Senator Mitch McConnell refused that. And so he created the circumstances under which, you know, this argument that the Senate didn't have jurisdiction could exist.

And there was no real reason to do that. It's not like the Senate was, you know, passing major legislation in the final few weeks that he held the gavel. And so, you know, that was just the only thing that I wanted to note about the jurisdictional argument. Totally. And no, I agree. And not only were they not passing major legislation, they weren't even in session, right? They recessed and they refused to return until January 19th, the day before inauguration. And that was a choice and a hugely consequential one. And, you know, and I also think there was, I don't remember exactly how many days, but a number of days lapsed even in the House before they voted on this article. And I do wonder that, you know,

they took a brief recess of just a few days, but a recess after starting, I think, on the 7th. Maybe they came back, you know, late the night of the 6th after, you know, the Capitol had been secured, they returned, they, you know, finished the counting of the ballots. And then I think they were all like exhausted and traumatized and so they they laughed for a few days and I remember the time being like what they cannot leave they have to respond to this and I think that might have been a really consequential choice now it still would have been a tough timeline oh sure to get it done and hold a trial all prior to the 20th but a you could have at least started the trial prior to the 20th. But A, you could have at least started the trial prior to the 20th, and that might have been meaningful.

But B, you know, I think it could have been done, and it certainly would have if they had tried. You know, it would have removed this really kind of central argument that McConnell and a lot of other Republicans who voted to acquit rested on, that it was simply a jurisdictional objection, that they were not even reaching the

merits of the impeachability of the conduct, because at the threshold, they didn't believe they had the authority to do it. And I'm saying they didn't believe this was the stated basis, as you said. I don't actually think in their heart of hearts anybody in the Senate was really moved by the jurisdictional argument. I mean, who knows? But I think it's pretty clear that everybody who's really studied the issue has reached, as you said, the Vladek, Kalt, et cetera, conclusion. And I do think that very early on, we talked about this before, right? Mike Luddig, a former appeals court judge from the Fourth Circuit, penned an op-ed saying, no, it's unconstitutional to try an ex-official. And it got a ton of press, a ton of pickup. And I don't think we've talked about this. I listened to him on a

podcast debating Keith Whittington, who's also a real scholar of impeachment. And Whittington was taking the position, again, that's very well settled, that it's okay to try late impeachments or that it's permissible to do it. And Luddig was arguing the opposite position. And in the first couple of minutes of the debate, Luddig sort of conceded sheepishly that he first started thinking about the question of impeachment a week earlier. One week. He had been studying the question for one week. And Whittington, again, taking the opposite position, has been studying this for 30 years. And again, everyone who spent any appreciable amount of time on this question has concluded that the Senate has authority here. And so it just did not feel like there was any real support

for this position. And yet it really was sort of the basis of, I mean, it was central to the defense the president mounted, and it was central to the articulated reasons for acquittal that a lot of Republican members gave. Okay, so there was the jurisdictional argument. There was a big First Amendment argument that the president's lawyers made, right? So the argument that because at the heart of the impeachment charge was presidential speech, right, in particular the speech that he protected by the first amendment and it is thus improper to mete out the punishment as it was repeatedly referred to of impeachment for speech and speech alone and it's hard to know where to start with why this argument is wrong right i mean i have to say i actually think so there are people who think that the first amendment has you know no

place at all in an impeachment proceeding and i actually don't and that the scholars letter which is a terrific letter by a bunch of First Amendment scholars, basically takes this position. And I actually think the Constitution and probably all of its provisions, or, you know, many of them, not all of them, in some fashion, its general protections do apply. So due process, for example, you can argue that due process doesn't really have any place in impeachment. And I think that due process principles in some fashion apply. But it is critical to remember that the Senate, you know, isn't in any way bound by judicial doctrine on the First Amendment or anything else when it decides what the Constitution requires in impeachment. So is it permissible for the Senate to say,

you know, we think that it would be improper to impeach someone because of unpopular political speech, because we think the First Amendment principles, you know, protect unpopular political speech. I don't think that's like categorically improper for them to sort of think about speech principles in impeachment proceedings. But it's a huge leap to suggest that the like Brandenburg test for incitement, which requires, you know, intent to cause and a likelihood of causing imminent lawless action. And just to be clear, that's the test that applies when you're talking about what speech can be criminalized and subject to criminal prosecution consistent with the First Amendment. So when we're asking about whether government can take your liberty for the things you say,

the bar is very, very high. And to suggest that that's the standard that has to be satisfied before you can vote to convict in impeachment is just facially preposterous. No one's liberty is at stake when they're facing impeachment. It's literally about a job loss most of the time, potential disqualification from holding a future set of jobs. That's it. And that's a hugely important piece of the way we incorporated impeachment into our constitutional scheme. It actually was kind of a bloody business in England and France. People face serious punishment, including capital punishment, following impeachment. And it was very clear when the framers put impeachment in our constitution that they sort of domesticated it, right? They said, look, all that's at stake if you're convicted is, again, removal and potential disqualification from future office holding. So these criminal law standards are completely inappropriate if we're

talking about the impeachment context. So, you know, so that's argument one, I think, really important argument. Another really important argument rejoinder to the suggestion that the First Amendment shields the speech is that even if we were talking about the Brandenburg standard, I think there's actually a very good argument that this satisfies it, right? That actually, you know, clearly in context, and context matters hugely in First Amendment analysis, in context, it was clear that this speech was intended to cause and likely to cause this imminent lawless action, this marching on, this storming of the Capitol.

Was it intended to cause every lawless act that followed? No, but I don't think that would be required in a judicial proceeding either, right? So that's another set of responses that I think is just really critical. Look, the president's lawyers are just really concerned, Kate, about constitutional cancel culture and canceling the president

for trying to cancel the election. Can you blame them? This is cancel culture just gone awry. It's gone too far, finally. They did use the term constitutional cancel culture multiple times. Yeah. Yeah. I mean, and, you know, another set of responses to the First Amendment argument is just that,

like, look, public officials, you know, face consequences for the statements they make all the time. Does it violate their First Amendment rights to consider their statements in court as to whether they have discriminatory intent? No one would say that. That's bonkers. The entire equal protection doctrine and First Amendment doctrine is premised on our being able to consider government officials official statements in figuring out what they were intending to do. Absolutely. So right when we're talking about holding them accountable in court or just there's a million other venues in which this stuff happens routinely.

So the Senate is perfectly justified in considering the statements of nominees before it when it is deciding whether to confirm them. And it doesn't violate their First Amendment rights. Except for statements on podcasts and Twitter, just hypothetically. I'm just kidding. Or TikTok. Categorically off limits. But no, right? Like we're, you know, we're accountable for what you say. And like, that's, that's okay. Like public officials just have to be, you know, comfortable with that. When former President Trump fired his cybersecurity official, right, Chris Kre be, you know, comfortable with that. When former President Trump fired his

cybersecurity official, right, Chris Krebs, remember this for saying, for acknowledging that this was the most, you know, free and fair election in our history. So of course, he said that that was true. Trump fired him for it. And nobody, people were really upset about that, rightly. But nobody believed that Krebs' First Amendment rights were violated by it, right? Like he lost his job because of things he said, and his boss disagreed with him. That's, you know, I think that it's actually quite analogous to what an impeachment proceeding is. And yet, you know, not only did Trump's defense team sort of press these specious First Amendment arguments again and again, they also sought to demonstrate that some of the rhetoric that, you know, was at issue from this speech at the Ellipse

was sort of roughly similar in totally different context to words or sentences that prominent Democratic officials, most of them women, had uttered on other kinds of occasions. I loved this because just like their accusations of cancel culture were like epitomizing a meme beyond how it could be memed in parody. This was just so peak both sides-ism. Like I can find an internet video where a Democratic woman of color has said the word fight. And therefore, it would be unfair to impeach the president for encouraging an insurrectionist mob to go fight people in Congress and take over the Capitol. It was everything. It just sounds too bizarre to be believed. And literally, that's the argument that they made in this heavily edited video. That if I'm not mistaken, they played twice start to finish, or maybe it was two different

videos. And I was just like, I can't tell if I've completely lost my mind or if I'm seeing the same video again. Um, and at one point one of the lawyers said, I'm, I could play it again, but I'm not going to. And I was just like, oh, thank God. Um, but yeah, it was, I mean, it was, it was, it was, you know, yes, primarily women of color in Congress and public office. There was actually, there, there, oh, there was a lot of Elizabeth Warren in there. Yes. Um, and that nasty woman, another nasty woman.

Yeah. Yep. Um, and yeah, I mean, they sort of, they, they didn't even develop the argument. They just sort of threw up the video and seem to suggest what you are saying, which is that it's, you know, everyone basically just like peak both sides. And people sometimes use the word fight. Everyone incites insurrectionist mobs to storm the Capitol. Okay.

Everybody does it. And also, it's not fair. You're going to basically, you know, you're going to be essentially punishing or exposing to punishment every future insider of insurrectionist mobs. The slippery slope argument. Who would want that? Exactly. Do we want to go down that path? Do we want to open up the possibility of also impeaching other people who might incite insurrectionist

mobs? Future well-intended insiders of mobs. Yeah, no. Also, just one final note. If this was your defense in criminal court, it would be insane. I murdered someone, but also other people murdered someone, and therefore you can't hold me accountable. Like, no one thinks that's true. Right, right.

No, right. So it's important to adhere to the letter of the law in, like, a criminal sense when we're talking about the First Amendment test. But we can do something that would just be facially preposterous in a criminal court, right? Which is to show, though, let's be clear, those videos do not show that anyone is ever engaged in rhetoric that's in any way analogous to the rhetoric that was at the heart of this impeachment charge. But even if they had, it wouldn't matter in a criminal proceeding. But consistency was not a virtue of the defense team. A couple of other arguments that they made, they suggested that the president wasn't given or the former president wasn't given due process. This is a variation of dude process where boys get to do whatever they would like, including inciting insurrectionist mobs to take over the Capitol. And you can't do anything about it because that would be canceling them. No, but it's just, it's so bizarre because obviously he has notice, right?

You are watching a hearing playing out in front of you at which his attorneys are arguing for him. Notice, hearing, assistance of counsel. Opportunity to be heard. He's definitely being heard. That's pretty much it. Right. Yeah. This is the process. So it just felt like there were words that were constitutional sounding words due process. And so they were thrown in. It wasn't even really a developed argument. Similarly, the words bill of attainder appear in the Constitution. And so those words appeared

in the defense. What was the argument that this is a bill of attainder? Could you follow it? I mean, I think, honestly, when they were making their jurisdictional argument, they kept using additional words to make the jurisdictional argument sound legitimate, including due process and bill of attainder legislative trials to impose criminal punishment on one individual, generally not permitted. But what is permitted are impeachment proceedings of particular federal officials. Yeah, it was like, you know, so impeachment is a constitutional process. So that's in there. And it just felt like there was all these moments in the opening argument that already feels like it was like a lifetime ago, but it was like, you know, Tuesday, in which it seemed as though to the extent it could make sense of Bruce Castor's arguments. He was the Trump lawyer who was very prominently featured on day

one and then was essentially sort of, you know, ferreted away. And we didn't really see her here from him again. It was a truly disastrous opening statement. But he kept seeming to suggest that parts of the Constitution violated other parts of the Constitution. Yes. And so I think that the impeachment clauses violate the Bill of Attainment or Prohibition may be what he was trying to argue here, but it was hard to follow exactly what the argument was. Okay. So that's sort of the universe of arguments that the president's team made. It looked like this was all going to be, you know, the house managers, the prosecutors presented both legal and factual arguments. We'll talk about that team in a minute. But it was, you know, it didn't look as though we were

going to hear from anyone, right, during the impeachment trial. And there was a sort of set of developments on Saturday that looked for a minute as though they were going to change the direction of the proceedings, right? So this was all basically headed for a verywoman from Washington state, Congresswoman Herrera Butler, put out a statement that was consistent with things that she had actually previously said, but that had a little bit flown under the radar. She sent them to a paper in her hometown and in a constituent town hall, but provided some new information about Kevin McCarthy's phone call with Donald Trump, in which it seemed as though, you know, they were really pretty damning statements from President Trump, Kevin McCarthy, essentially pleading with him as individuals like banged on. And at one point, I think broke office windows, McCarthy asking Trump to call off the mob, Trump initially

saying, they're not my people, McCarthy saying, no, that they're wearing your hats and your flag, that these are your people, you need to call them off. And Trump responding along the lines of, well, maybe, Kevin, they're just a little bit more upset about the election than you are, or maybe about election fraud than you are. I'm essentially seeming to say, like, good. I'm glad. And so that's really serious evidence. You know what I hear? Senator Elizabeth Warren has used the word upset before, Kate. So is that a big deal? Is that? I'm not sure.

I was thinking of the highlight reels that you could make. There are people saying upset in totally different contexts. So they got the vote to actually debate. It was a little bit unclear. At one point, a member of the Senate said, wait, hang on, what did we just vote on? And I was glad I was not the only one who was confused because it was a confusing vote. I don't think Pat Leahy, who was presiding, was perfectly clear on some of these procedural points either. But anyway, they took the vote to consider calling

witnesses, recessed for a few hours. And I don't think anybody really knows what exactly transpired during those few hours. But when they returned, there was a stipulation to enter into evidence, Herrera-Butler's statement, but essentially an agreement to move on to closing arguments and not call witnesses. And that did feel like during the period of uncertainty, it was very unclear like whether they would be calling witnesses. And you had, you know, some Republican commentators suggesting they were going to call Nancy Pelosi, Vice President Harris, and so on. And, you know, there was like real, like some combination of excitement, fear, and just no one knew like what was going to happen if they were going to be

calling witnesses. And then it all sort of came crashing down. And, you know, I don't know. I don't know the answer to why this extremely talented team of impeachment managers, we'll talk about them in just a minute, made the judgment that they made not to press the issue of calling witnesses. I have to imagine that they had been given reason to believe that they would jeopardize some of the Republican votes and not that there would be, I don't think, a principled basis if you're a Republican who thinks that conviction is appropriate to sort of, you know, threaten to withhold that vote on the basis of witness testimony that you haven't even heard yet. Like, I mean, it's just hard for me to construct a principled exchange between an impeachment manager and a senator leaning convict that sort of follows that script. But I just don't otherwise know. I think it was really important knowing how hard it was going to be to get to 67, knowing how long the witness fights would likely drag out in terms of at least some of the

witnesses and sort of with the possibility of actually losing as opposed to gaining some votes. I can well understand reaching the decision that it was better to just press ahead with the closing arguments, but it did feel like maybe there was a lot of important information that the public could get. I mean, we talked about this commission. And one thing that I think we have to acknowledge is there is just an unusually public dimension of an impeachment trial. And so presenting evidence in this setting when you actually have networks doing wall-to-wall coverage and people following it so closely is just going to land really differently with the public than even a really rigorous and careful congressional investigation that results in some, you know, 500 page report two years from now. Right. Exactly. Like two audiences, one possible audience is the jury, the Senate, but another very important audience is the American people. Witnesses might have, you know,

been helpful to one audience, even if not the other. But, you know, we will never know. And, you know, it's also been reported, I think the New York Times suggested that Senator Joni Ernst, you know, or at least other Republican senators were saying, well, if you go ahead with witnesses, we are basically going to stonewall and prevent you from enacting any legislation or, you know, move your nominees forward. You know, other there were also concerns floated that maybe this is a way to like help Joe Biden get his agenda, you know, move forward, stop the Senate trial. You know, I think that honestly, like one hard question that emerges from this trial and like that reporting is, well, what should the Senate and administration be pushing for vis-a-vis the filibuster and like their ideas about governing, like given that this trial only resulted in 57 votes, like which is not a filibuster-proof majority to get legislation passed. And, you know, and we've talked about, you know, the extent of evidence and like the existential threat to democracy, you know, what do you do now knowing that? And

especially knowing that they were holding this threat to attempt to block nominees and block all legislation. Yeah, that's a great point. The difference between 57 and 60 is actually, you know, it's, you know, it's not that you could even necessarily get a lot of these votes on policy issues anyway. But yes, I would hope that if anything, this just sort of, you know, further, you know, raises the urgency of considering filibuster reform. I totally agree. Okay, so let's talk for just a couple of minutes about the impeachment managers, right? So those are the House members who serve basically as prosecutors in the Senate trial. And it was a team led by Maryland Congressman and former law professor

Jamie Raskin. And I think that, I mean, I thought that he was absolutely superb in this trial. He was conducting it, leading this team under unimaginably difficult circumstances. So he, on New Year's Eve, lost a child to suicide. He had buried him, that child, the day before the January 6th attack. He was with one of his other children in the Capitol, feared for their lives while this happened. And then, you know, undertook this role of leading this team of managers to sort of put together and then present this trial before the Senate. And he was just superb. He is, you know, he's a law professor, taught constitutional law for something like 30 years. And so his, you know know command of the constitution and the law was really masterful but he was also not professorial at all like I mean he was I think only professorial in the best way like he wasn't

pedantic at all he was very accessible he talked about the constitution and case law and there were a couple of really good flexes like so the president's team a few point a few times suggested he was misrepresenting Bond versus Floyd, a case in which Julian Bond, who had been elected to the Georgia legislature, was initially denied the ability to take his seat based on criticisms that he and Snick, of which he was a member, had made of the Vietnam War. And he won a First Amendment challenge and was able to take a seat in the legislature. And it was just like, not only does Raskin know the case inside and out, he knew Bond very well.

And he was just like, he was a little bit like, no, no, you're not going to school me on the meaning of Bond versus Floyd. And there were a few other moments like that. But mostly he was just like, I thought, I don't know what the American public thought, but I just thought he like did law professors incredibly proud. Like he just was a credit to our profession. And, you know, and also not all law professors I think are good trial lawyers like I would I don't think do a good job of anything

along these lines but he was like an incredibly effective trial lawyer that's what he was prosecuting a trial and he did a terrific job yeah no I think you know he did a service to the profession he did a service to the country um I cannot imagine you know conducting the impeachment trial under those circumstances, but he was spectacular. He was. And then America got to really like get to know a bunch of other members of Congress, some of whom, you know, are new to the body or low profile and people probably hadn't been exposed to before. And it was just like an incredibly talented, brilliant bunch.

So Representative Joe Neguse from Colorado, I thought, was really special. Like he is 36 years old. He's a lawyer, of course, and an incredibly smart guy. So there's this moment when he started, he sort of reached back into the mid 80s. Right. So he talked about a lot of things that the Senate as a body had accomplished. And he talked about the Voting Rights Act. He talked about passage of the 13th Amendment.

But then he pulled a moment from Senate history from 1986 out. And he said, you know, in 1986, the Senate voted to override President Reagan's veto of sanctions legislation against apartheid South Africa. And he said there were, you know, two members still in the Senate who voted to override the veto, right, voted in favor of the sanctions that Reagan had vetoed. And in one case, like against his party and potentially a great political cost. And he didn't name the senators and he just let it out there. He sort of said, you know, I know this body can do great things. And it was a young or youngish Mitch McConnell who had cast that vote. And it was just such

a deft reminder that like maybe somewhere in Mitch McConnell is like a kernel of principle. And he seemed to be like reaching for it in a way that like this young congressman, like it was just like such a masterful display. Actually this whole like eight minutes, the second half of his closing remarks yesterday, I would say are so worth watching. But I was just like, I don't even, I have no idea what he's talking about. And then I got on the internet and it was like, oh yeah, this whole thing was like just a very smart pitch to Mitch McConnell. Unsuccessful ultimately, but just like, I think a demonstration of just like what a special mind this young congressman has.

So he really blew me away. We also got to know better and see Representative Stacey Plaskett, who, as a former prosecutor, really brought a lot of trial skills to the impeachment proceedings. And she had put together or was in charge of narrating and explaining to the body, like, you know, footage of the events of January 6, and kind of constructing the narrative. And I think she just did a superb job on that and many other things as well. She's really, really talented. Yeah. I loved getting to watch her. The rest of the team was really impressive as well. So I do think that, you know, to the extent that for a lot of people, it felt like a day, it felt like a week that was really disheartening from the perspective of our institutions and of Congress in particular.

It's like there are actually a lot of extremely smart and principled and thoughtful people in that body. And some of them like you just have never been exposed to before. So I actually thought that was one really kind of silver lining of the week, actually. So So we had the lawyer who referred to Philly Delphia, you know, on top of all the references to due process and bills of attainder. Trump's lawyers, Bruce Kasser, David Schoen, James Van Der Veen, not maybe the best people. Or in George Bluth Sr.'s words, I have the worst fucking attorneys. I feel like that meme got appropriately a lot of play last week. Yes, it was, I mean, it was a struggle clearly for the former president to find lawyers willing to defend him in these proceedings. These are the three who agreed to do it. Van Der Veen mostly fielded the questions during the question and answer session. And he was actually deeply offensive at a number of points. He was rude. He was dismissive. There was one, I think, really important question from Susan Collins and Lisa Murkowski about, you know, really pressing the defense team on when the president knew the vice president was in danger

and what he did to stop it and van der veen's dismissive kind of contemptuous answer was to to cite it was a tweet like one tweet and then to attack the house managers for having failed to get that information from their own client um and there was just like a number of moments like this in which they were, that Van Der Veen in particular was rude and dismissive. And that, you know, the closing that Raskin gave yesterday, Saturday, it was just like, you know, like it was, it seemed to sort of speak to the ages. He spoke again about his family. He, you know, appealed to the Senate, the Senator's love for the Constitution. He ended Godspeed to the Senate,

and then just sort of sat down and sort of said, you know, kind of history is going to speak. And then Van Der Veen got up, and it was just like this incredibly classless response in which he said, you know, basically, I need to first start by cleaning up the mess of the manager's closing. Like, it was just so disrespectful, and then started to take issue with some of the factual representations and then went on to make tons of factual claims. I think, again, raising the possibility that there were rioters from the left and the right involved in the January 6th attack in the closing. And the managers, I think, just showed remarkable restraint in not getting up to object to these baseless claims that were not in the record, although part of me wished they had done so, you know. Anyway, it was, and then Raskin did get up and give one final short rebuttal, but again,

was very restrained and did not take much time doing it. So yeah, I mean, I wonder whether, it made me think a little bit about previous strict scrutiny guest and, you know, one of our legal idols, Sherrilyn Ifill, had a terrific piece, I thought, in The Times about the role of lawyers in the Trump administration last week. And I wonder whether, you know, I think it's a complicated story, sort of the story of how our profession has performed. And I think maybe we just touch on it today. Maybe we come back to it because I think we want to wrap soon. But, you know, she's arguing that lawyers enabled Trump's worst abuses.

And, you know, so the piece ran last week, so before the trial was done. But, you know, many of her points were very much on display in this trial. And I think that, you know, when we think about the story of the last few months, sort of putting aside the four years of the Trump administration for a minute, it's in some ways part of the story is that the law served as a bulwark and the court served as a bulwark against these attempted anti-democratic moves, that the courts were pretty uniform in smacking down the former president's efforts to press baseless fraud claims or frivolous legal arguments. And so this idea that the courts actually did hold, and so our institutions are strong, and that's one big takeaway. I think the courts actually

performed quite well in that. I don't want to discount the importance of that, but I also think that they were only in a position of even answering these questions because lawyers were willing to take these arguments to court. And so it's important to focus on that, too. And it seems to me that that's what Sherilyn's focusing on. And these lawyers were making the arguments that were then ultimately successful. And I think that it's true that our profession has to reckon with that as well.

Yeah. And it's not just the lawyers who are making these arguments that courts rejected, but also it was lawyers, and Sherilyn talks about this in her piece, who made the arguments that fed into the big lie, namely the extent and problem of voter fraud. And now that's animating a bunch of proposed restrictions on voting, but that was also partially behind the big lie narrative as well. And so that's part of, you know, the accounting that she's calling for. Yeah. I think that maybe this is a topic we should, she seemed open to coming back and doing a

return visit to Strix Routney. So maybe we should try to get her to come in and talk about this. Yes, we'd love that. Sherilyn, if you're listening, just let us know when, anytime. So someone else who we're hoping to have on the podcast because they might have some extra time on their hands. Oh, you're so good at segues, Leah. Who is that?

Maybe you should ask this question, Kate. Will Steve Breyer soon have a lot of time on his calendar? It seems like. And if not, why? If not, why not? So this, I just feel like mid-February is a good time

to make this kind of announcement. I mean. Happy Valentine's Day, America. I love you. I mean... Happy Valentine's Day, America. I love you. I love democracy. I mean, look, I think that our listeners know we love and respect

our fellow Cassandra, Steve Breyer. None of this has anything to do with wanting him out of the court in any way. But it is, as we have said many times, it is a very precarious Democratic court in any way. But it is, as we've said many times, like it is a very precarious Democratic majority in the Senate. Things can change or happen fast. There's still a raging pandemic. I think all the senators have hopefully now had their second shot, but I'm not sure.

And it just feels like waiting until the end of the term, which I understand the instinct to do is just too long, right? I think that he should at least start talking to the White House. Now, maybe he has. I don't know. But I think that he should send a letter to the White House this week and then maybe announce it publicly a couple weeks from now so that hearings can happen. And he can make his announcement, as Sandra Day O'Connor did, contingent on the confirmation of his successor. I think he should do that. But I truly think that, yes, this is the Valentine's Day gift America needs, and the DeBriars don't let us down. Yeah. The one thing I would just add to that is we have seen two, I think, cases in recent times where his vote was actually necessary to the outcome. One in Salinas v. Railroad Retirement Board about the reviewability of past denials

of employee benefits, and then also more recently the stay on execution that the court gave to Willie Smith on religious liberty grounds. And it is possible that there are other such cases where his vote is necessary to the outcome. One, honestly, might be the Affordable Care Act case on severability. Another might be Fulton v. City of Philadelphia, although I think that's going the other way. But I don't think that that prevents him from saying, I announce my retirement upon the confirmation of a successor given the leg time that is built in with meetings with senators as well as confirmation hearings. Yeah, totally agree. All right, so let's leave it there. Okay, so thanks everyone to listening to our snap episode on the impeachment

proceedings. Thanks so much to Catherine Fink for substitute producing this episode. If you'd like to support the show, you can become a Glow subscriber at glow.fm forward slash strict scrutiny. And if for some reason you're on TikTok, we are also recently on TikTok at strict scrutiny podcast. So join us for some Breyer memes, some impeachment schticks, and other things too.