The Chris Voss Show - The Chris Voss Show Podcast – The Law of Presidential Impeachment: A Guide for the Engaged Citizen by Michael J. Gerhardt

Episode Date: January 2, 2024

The Law of Presidential Impeachment: A Guide for the Engaged Citizen by Michael J. Gerhardt https://amzn.to/3vsc1GJ A clear and comprehensive overview of presidential impeachment from a leading expert in the field As a result of Donald Trump’s presidency, impeachment was once again thrust into the spotlight of American political discussion. However, its history goes back to the very founding of the nation, when American colonists, remembering their grievances against their former king, entrenched the process in their new Constitution. The Law of Presidential Impeachment breaks down both the law and politics of this process, providing a comprehensive, nonpartisan, and up-to-date explanation of the Constitution’s various mechanisms for holding presidents accountable for their misdeeds. Based on a lifetime of scholarly research, as well as unique experience as a witness and consultant in the impeachment trials of Bill Clinton and Donald Trump, Michael J. Gerhardt’s new book takes the reader back to the basics of presidential impeachments. Rather than provide reasons for or against impeaching particular presidents, he explains the law and procedures that govern impeachment, examining a number of significant, yet under-explored, issues and themes. Gerhardt offers new perspectives on the subject, arguing that it cannot be properly understood in a vacuum, but must instead be viewed in the context of its coordination with such other mechanisms as criminal prosecutions, censure, elections, congressional oversight, and the Fourteenth and Twenty-Fifth Amendments.

You wanted the best. You've got the best podcast. The hottest podcast in the world. The Chris Voss Show. The preeminent podcast with guests so smart you may experience serious brain bleed. The CEOs, authors, thought leaders, visionaries, and motivators. Get ready. Get ready. Strap yourself in. Keep your hands, arms, and legs inside the vehicle at all times because you're about to go on a monster education roller coaster with your brain. Now, here's your host, Chris Voss. Hi, folks. It's Voss here from thechrisvossshow.com. There you go, ladies and gentlemen. The Iron Lady sings it. That's when you know it's official. Welcome to the big show.

We certainly appreciate you guys coming by and giving us a listen. Three to four shows a weekday, 15 to 20 shows a week. We're bringing you all the most amazing minds, the billionaires, the White House advisors, the Pulitzer Prize winners, the people who spend tens, hundreds of thousands of hours, sometimes a lifetime, creating the stories and learning the lessons that you can learn from as well. And of course, bringing you the beautiful synopsis of everything they have on the Chris Voss Show. And of course, you should go out and pick up their books. Today, we have an amazing gentleman on the show. He's a professor as well.

We should give him that denotation. Is that denotation? Is that a word? I don't know. I flunked second grade. He's the author of the newest book coming out january 9th 2024 the law of presidential impeachment a guide for the engaged citizen michael j gearhart joins us on the show and we'll be talking about his amazing book and as if you haven't been following politics or if you're watching the show on youtube five to ten years from now the current gop house has opened an investigation to President Joe Biden without any sort of indictment of a crime. In fact, I think they're, what's the old line? They're looking to solve a crime that they can't, I don't know. I have no idea what the reference is. Michael J. Gearhart is a Samuel Ashe Distinguished Professor of Constitutional Law and Director of the UNC Center on Law and Government at UNC Chapel Hill.

He has degrees from Yale University, let's see, London, Lundson School of Economics and University of Chicago. He lives in Chapel Hill, North Carolina with his wife, Deborah, and their three sons. Welcome to the show, Michael. How are you? I'm fine, thank you. I appreciate you having me. I appreciate you coming. Thanks for being here. Give us your dot com so people can find you on the interwebs. Probably the best place to find me would be on the website of

University of North Carolina Law School. So if you just type my name in, you'll get my website. There you go. So give us a 30,000 overview of your new book. This book, The Law of Presidential Impeachment, aims to sort of pull together a lot of what I've learned over decades studying the impeachment process and writing about it and researching it. And it suggests that the law of presidential impeachment is pretty straightforward.

It's not that difficult to understand. But once we get into a presidential impeachment lots of the people involved have vested interest in confusing us or getting that law distorted or wrong so this book tries to sort of set hopefully everyone straight and also identify the issues that are likely to come up with presidential impeachment and how those issues should be handled. There you go. So you timed it just perfectly. I mean, did you have a crystal ball that at the launch of your book we would be in another impeachment? I wish I did, but I did not expect.

You know, I don't control the events in the real world, but they seem to collide with my books, yeah. And, you know, I know one of the things with the major publishers who send us their authors, usually you guys put this in edit and production, and usually sometimes it takes six months out. When did you wrap this book before it went to publish? It would have been last, I was going to say last year, 2023. It would have been probably early part gonna say last year 2023 it it would have been probably early part of the summer of 2023 you should see if you should see if nyu press will let you go back

and add a blurb that says i predict that but no this is really interesting and so you've written a couple books on impeachment haven't you yes i I got interested in the study of impeachment when I first became a law professor back in the late 1980s. I just thought it was a very interesting area to study how the Constitution works when courts are not involved, when Congress, for example, is the final decision maker. So I wrote a book on that subject in 1996 called The Federal Impeachment Process. Then i wrote a book in 2017 impeachment sort of whatever everyone needs to know and this is now my third book on the topic though i have done additional editions for those other books and written a number of articles and op-eds

there you go you're gonna have a long run because i guess the new thing is is just every administration from here now it's going to just impeach the other one. I guess that's our new normal. That could be what would not surprise me, unfortunately. Please, God, make it stop. Just do your job, Congress. So give us a little bit of background on you, your history. You wrote some books on Lincoln and FDR and federal appointment process. Yes. And so my interest is primarily with what I call constitutional conflicts. Those are clashes between Congress

and the president over control or primacy in different areas of constitutional law. And so I've written about the impeachment process. I've written about the appointments process, specifically Supreme Court confirmation proceedings, where I've also been special counsel to the Senate Judiciary Committee on several Supreme Court nominations. And my interest in what we call the Constitution outside the court sort of extended to try and understand presidential power. So eventually I got interested in doing a biography of Abraham Abraham Lincoln and that's called Lincoln's Mentors, which came out a couple years ago. And I've just finished the manuscript and proofreading for a book called

FDR's Mentors, which will be out later next year as well. There you go. It would be interesting, you know, we've had people on that have authored about Lincoln. I think he has, like, probably the most books biography about him, but I've never seen something about, you know, who influenced him, like who was his influencer. So I find that really interesting.

It was a very interesting sort of opportunity for me first to sort of just get out of my comfort zone, so to speak, and try and sort of write something a little different than what I'd written before. The Lincoln book is not really a straightforward academic book. And in the course of studying Lincoln, I just found a handful of individuals he referenced or relied on throughout his life. So this is the story of Lincoln's life through his interaction with those individuals. So what do you hope people come away with with your book to understand the impeachment process? It seems like it's gotten politicized now to a point that you know we're just kicking it around like a football every day you know seeing you know it's so funny seeing it

being used as just basically you know people just don't check the facts anymore and they they know that people aren't going to check the facts and and just use it around like we think that the biden did something it's just like just like what and politically seeing it around like, well, we think that Biden did something. It's just like, what? And politically seeing it abused is quite interesting. Is it being politically abused in your opinion, I guess? I do think it's being politically abused, and that's always been a possible challenge with impeachment. My hope is that what people would get out or get from the book

is a firm sort of grounding in what the constitutional law is as it relates to presidential impeachment and then it might help everyone understand better when it is being politicized or abused as opposed to when it's being used properly there you go it's so do you give us further thoughts you have on the on what's going on with the Biden thing. I mean, is this a constitutional crisis we're in with them just willy-nillying whenever they want the impeachment process? What do you see the lay of the politics right now? I think it's an impending constitutional conflict, obviously, between the House and Joe Biden. But the origins of the movement to impeach Joe Biden began well before he was president. You could argue that in 2019, Donald Trump was already foreshadowing this current movement.

He claimed as part of his defense in 2019 that, oh, Joe Biden's more corrupt than I am. And Trump had no proof for that. But what Trump and his defenders argued is that Hunter Biden is a crook and Joe Biden somehow helped him. That got discredited in 2019. Trump vowed back then and continues to say he wants his followers to impeach Joe Biden because they did it to me. That's a quote from Trump. What happened to Trump is really the result of Trump's own misconduct. Nobody invented that. There's a voluminous record of his misconduct supporting both the 2019 impeachment and the 2021 impeachment. With Joe Biden, there's not a voluminous record of any kind that relates to his misconduct. The House has primarily focused on Hunter Biden and just assumed that whatever Hunter Biden did must have been criminal and assumed further Joe

Biden, because he's his father, must somehow have known about it or be complicit. That's not evidence. That is partisan hatred and that should not serve as the foundation for any constitutional action definitely definitely and i suppose there's there's no way to fix this it's just it's it's not something that scotus can rule on do you have any thoughts on what's going on with them trying to remove because you're a constitutionalist so any thoughts on you know this whole the removal of trying to remove the donald trump from the ballot over the January 6th? We can identify a lot of moving parts here, and they are to some extent related. I think one of

the basic things that unifies a lot of these different events we're going to talk about is Donald Trump's fate. And so for those that want that fate to be good, want to see him return to the White House, they're going to try and impeach him in the House and use the inquiry against Biden just to air whatever outlandish theories members who like Trump can conceive of regarding Joe Biden. There are these lawsuits which Trump has filed partly to delay criminal proceedings that are being directed at him. And there's another set of lawsuits, which Trump has filed, partly in response to efforts to get him off the ballot in certain states. So those lawsuits that are designed to get him off the ballot in certain states are grounded in a reading of Section 3 of the 14th Amendment. And one way to read that section is very plainly as applying to Trump, meaning that anyone who's taken an oath of office who incites rebellion or insurrection is not eligible to take that oath again.

Trump maintains that that section doesn't apply to him, and therefore he's filed sort of countersuits on that. Trump has also claimed all sorts of immunity that only would be applicable to a king. And he is not a king, though I think he aspires to be one. And I think that the Supreme Court may get drawn into some of this. For example, Trump has argued that because he was impeached based in part on his misconduct relating to January 6th, that therefore somehow that precludes a criminal proceeding based on January 6th. It's a really silly argument, but Trump hopes that the Supreme Court will take it, partly just to delay the criminal action against him. Impeachment doesn't impose any criminal sanction.

And therefore, impeachment isn't putting somebody's life or limb into jeopardy more than once. That's how we define a criminal proceeding. It puts life or limb into jeopardy. The only sanctions in impeachment are removal or disqualification. And so those are more like a civil case. And the Supreme Court has long held that civil actions based on the same kind of misconduct that might've grounded a criminal action are permissible. That explains why, for example, O.J. Simpson is found liable in a civil

case for the misconduct for which he was held not guilty. And the same thing might apply in the Trump situation. He was impeached, but that's a different process than a criminal proceeding in which there has to be evidence beyond a reasonable doubt and the punishments may include imprisonment yeah it's it's it's it's it's an interesting time that we live in you know and then you look at scotus i mean i believe was it wasn't nine zero or didn't they rule on on rule on breaking presidential immunity with Nixon? Didn't they rule a majority in favor against Nixon? It was unanimous.

Whatever it was at the time. I think there was more justices back then, wasn't there? Well, there were nine justices back then, as there are now. Eight agreed unanimously that Nixon, as president, should have to comply with a judicial subpoena to take conversations he had in his possession. One justice, William Rehnquist, recused himself because Rehnquist had been an official in the Nixon Justice Department and had advised Nixon on the constitutionality of Nixon's actions in that situation. So Rehnquist didn't participate. The court was also unanimous when it held that President Bill Clinton had to face civil liability for pre-presidential misconduct.

The court was nearly unanimous when it said that Donald Trump could face criminal proceedings while he was president. If he could face criminal proceedings while he was president, he sure as heck could face them when he's no longer president. Yeah. I mean, you know, we live in a world now where the SCOTUS seems to be highly compromised. You know, you've helped advise on the appointment of SCOTUS individuals. You know, I mean, evidently, if you want to just give away free RVs to certain ones of them and let them drive around. And some of the gifts just keep, every time I hear news on the gifts that, you know, I heard that his staff was giving him stuff for his RV recently. I don't know who came out with the New York Times or Washington Post or someone.

But you're just seeing this craziness, especially with Clarence Thomas. And God knows who else is compromised at this point. And you're just like, you know, they overturned Roe versus Wade, a 40, 50 year old law. I mean, what would make them just go, yeah, we're just going to rule in Donald Trump's favor and put them on the ballot and off we go. They certainly have the power to do that. One thing I think to keep in mind is whether or not there's some constitutional principle at work. If we think, for example, just to take one example, that whatever Justice Clarence Thomas has done in terms of receiving gifts is fine, but jaywalking

by a justice appointed by a Democratic president must require that person's removal. We're not talking about a principle. We're just talking about partisanship. And the same thing applies to the presidency. If we think that Joeiden should be punished for actual misconduct then donald trump as president should be punishable too for any misconduct he's committed that's how principles work they don't pay attention to the party of the president they pay attention to his misconduct and people don't seem to really get you know i mean most i'm a moderate democrat so i'm very kind of to the middle i'm not really a fan of either extreme left but you know i mean if if president biden or you know hunter biden did something

illegal put him in jail i'm fine with it i voted for him fine put him in jail that no man is above the law i've read the federalist papers i i I keep the Constitution here. We have a lot of great journalists that carry the Constitution around with them. If he breaks the law, send him to jail. No man is above the law. It's not my team. My team's Team America. That's my team. I would agree with you. When I testified in the Trump hearings in 2019, my theme was no one's above the law. So the law, if Donald Trump broke the law, he pays a price.

If Joe Biden broke the law, he pays a price. Just that simple. But it's not, and unfortunately, there are folks that don't think that way. They just want to see the other side punished. And that's one reason I think I wrote the book, because I wanted to lay out in pretty straightforward and clear language, okay, here's the law, and it applies to every president equally. And so it's important to lay this foundation. The only problem is I think some of the targeted audience on the other side can't read in the first place. So that's a joke, people. I'm just being me. What are some tidbits out of your book that you think that people will need to learn or maybe come away with or will be surprised by?

One thing is that impeachment is designed primarily to address official misconduct that is not addressed either well or at all in civil law or criminal law. So if the president does something that's illegal, abuses his power, but there's no civil remedy, there's no criminal remedy, that's exactly the kind of situation for which impeachment is ideally suited. So the president abuses his pardon power or abuses some other power. That's not the kind of thing he could go to jail for. It's not the kind of thing he could be sued civilly for, but it is the kind of thing for which he could be impeached. Yeah. Remove from office or block from retaining office in the future. Yeah. I think

it's important that people are engaged read the constitution please jesus everybody i see running around whenever they decide they want to quote the cost i can't even quote the constitution so i don't but i never see somebody running around quoting the constitution you're just like i know that's not in there have you have you read it lately um and so this is why yeah this is why it's important to read books like yours. You know, you'll see somebody saying, that's treason. You're like, treason only applies if we're at war, idiot. Thanks for playing.

But, you know, these people vote. So education is really important for people to do things. It's interesting to me that people, maybe they do recognize it and they just don't care because, as you said, they're using it as a political weapon and to punish the other team when really, you know, we're all Americans. We're punishing ourselves and our democracy. And we, you know, the people that hate us and want to destroy us like Russia and China are just having a field day laughing at it and, you know, telling everybody, yeah, that democracy, look at that thing. It's working out well. But people, you know, it seems like, you know, the GOP did this with Hillary Clinton. I mean, there's like 50, what, House committees on her emails or something, if you remember back then.

Yes, I do remember. And so it's just the politics of if we can throw enough crap up against the pain, enough crap on someone, even though it's not true or it's not, it's not really a thing. We can hurt their chances for reelection. Many of the same house members that claim they've got some evidence of Joe Biden's misconduct, by the way, they can't agree on what's evidence, what misconduct is, but those same people think Trump's never engaged in any misconduct yeah he's been indicted for more than 90 felonies but those same people that think about joe biden should be sent to jail

argue biden should go to jail and so i think or at least it's my hope that this book can kind of cut through that disinformation we've got to cut through the sort of efforts to block education, impede education, but instead sort of try to help everyone understand, okay, here's what we know about the Constitution when it comes to presidential accountability. And

the Constitution is really important. We have to maintain that rule of law. I mean, you read the FedLos papers no man is above the law it was designed to keep from anyone from being a king or a fascist ruler or authoritarian it was funny how they saw Trump coming

when you read it you're just like wow these guys saw 248, 49 whatever it is years in the future yeah one of the fundamental justifications for America's rebellion against England and

founding of the first constitution was that no one was above the law. And if you go back and look at the Declaration of Independence, it consists of 27 impeachment articles against the king. And the king was the only person in all of England who was not subject to impeachment. The framers didn't like that because the king and the king was the only person in all of england who was not subject to impeachment

the framers didn't like that because the king was above the law and the framers therefore founded this country in part based on the belief that no one's above the law with presidential impeachment a way to remedy that right there you go so this is really insightful man people should read your book and get into it learn learn about what's going on don't don't be you know the biggest challenge i see nowadays is people learning their politics about what's going on. Don't be, you know, the biggest challenge I see nowadays is people learning their politics or whatever's going on politics through memes on like TikTok. And, you know, you can tell me something and I'll be like, you got that off a meme on TikTok, didn't you? Is that where you're learning everything? That's your state of news.

And it's just so amazing what we've come to. And the knuckle dragging that goes around, or the Dunning-Kruger disease that goes around, it's just stunning. Do you have any hope for the future? Do you have any hope for the future? I hope so. I got three children, so I'm hoping for their futures. I do. And this is one of the reasons I'm a teacher. For those of us who devote our lives to teaching, we think of it as a profession. It ought to be a profession, but it's a profession based on hope that knowledge will be helpful. The knowledge will, in a sense, liberate you, not in a political sense of being a political liberal, but liberate you to sort of live the life you want to live, to open your mind and to train your mind to handle

new ideas. So every day I walk in to the building to teach a class, I guess that's my act of hopefulness. There you go. Teach, teach, educate. I mean, and then of course, as you point out, it's really important to learn. That's why we do the show is to help people learn and get up to date on what's going on. You know, it's an interesting time we live in and it'll be interesting to see how this all plays out in the end. You know, this democracy is so fragile and you see democracies fall so easily like Hungary in 2020. I think there was another nation state that fell to authoritarianism. We're seeing the rise once again of right wing politics.

We're seeing nations fall. I mean, Mussolini's party got elected to Italy again. I mean, who saw that coming? Bruce Coloni, which I think he recently passed, didn't he? But, you know, I remember watching on the night of Donald Trump's election, there was two Italian journalists that came on, and they were going, you just elected, is it Bruce Coloni, who was the head of Italy twice?

I'm not sure if I have that name correctly, so so the reference is there, but he, I mean, he was elected twice and they go, you just elected him and you, we elected him once and he caused all these problems like Trump did all this corruption. And then we finally got him kicked out of office and then they didn't pass any laws. They didn't do anything to regulate him and he took office again.

And then he was worse. One thing to keep in mind is that the framers did not design the constitution with the idea in mind that if somebody gets elected president, they can do whatever they want. Convictment was designed as a way, frankly, to undo presidential elections. And we know that. It's very clear from the design of the original constitution, because under the original constitution, if the president were removed from office, the person that finished second in the presidential election becomes president. So if, for example, John Adams had been impeached and removed from office, his vice president, Thomas Jefferson, who was the one who finished second in the election, would have become president. So the fact that a president is elected is not a get-out-of-jail-free card.

A president who's been elected is still subject to impeachment for serious misconduct. That's the law of presidential impeachment. There you go. Silvio Berscoloni was the one I was referencing in Italy. And, yeah, when he came back a second time, it was worse. It was really bad. And so they were citing that you've done the thing. He was also a billionaire, media mogul, all that stuff.

He was actually prime minister three times, actually, it looks like. So there you go. Corruption and stuff and authoritarianism. You know, this is the fight over this democracy. It'll be interesting to see how it plays out. The SCOTUS compromise is really of concern. I mean, if they're not going to hold to a precedent of a 50-year-old Roe versus Wade law,

maybe they'll overturn and be like, yeah, the president is above the law. Just all that Nixon stuff and everything. It's interesting how now you can look back on Nixon and go, he actually respected the constitution wasn't that bad i guess i mean it is interesting i mean nixon thought about defying the court order to turn over these tape conversations which were going to incriminate him but he decided to do it yeah and when he decided to do it he was complying with the law yeah and for a president to defy a legitimate

subpoena is a defiance of the law yeah and this supreme court with the same justices that overruled rovers wade ruled that trump could be could face criminal prosecution while he was in office yeah so that's an important ruling in which i would say there was a principle involved and the justice recognized that principle and stood by it hopefully they'll keep standing by it you know i to me i don't know if this this if you have any thoughts on this but when i was seeing you know the argument and the impeachments over the president and seeing you know just just the pirate ship of of unethical and illegal stuff that was going on during the trump administration it was just like it was like daily and i was like you

know the problem with the rule of law and i started really thinking about it is that we all maintain it's kind of a it's kind of an agreement that we have hey we're all gonna we're all gonna follow the rule of law i'm not gonna break into your house and steal your shit like it's some sort of medieval thing we're living in back in the times, right? So I'm not going to break into your house. You're not going to break into mine. We're going to follow the speed limits. We're all going to do the things because we want a civil society.

We don't want marauders running around and doing whatever. And even for me, who, you you know i don't like going to jail so i'm kind of against that so i follow the law you know but even then i you know there's a certain rule to it where you're like hey you know i'm still from you you know so for me and we all get along and we're good neighbors you know there's a certain that there's a fabric of that i think that binds our society together the that rule of law aspect and even there was one point in the trump administration where even in my mind i said why do i why do i bother doing all the good ethics and doing all the good things like look at this

guy this this trump guy and his his band his pirate ship they're doing all this shit and i'm just like why do i follow the don't I follow the rules? I'm like, you follow the rules because this is what it is. But to me, in my mind, what I saw was probably a lot of people had that question put in their head and people that maybe aren't as well balanced as maybe the rest of us. And what's interesting to me is to see this law breaking that's going on in cities. And I don't want to sound like I'm Fox News here, but you see the gangs rushing in and stealing so much that they've had to close stores

and malls. And I believe there's just pockets of this going on. I don't know. But it seems like it's in major cities. Some of this has probably come from COVID. People are broke, whatever. But some really just feel like the rule of law doesn't apply to them. And you can probably point a million different fingers at what this has come down to.

But to me, what it represents is that people saw enough criminality going on at our highest levels. And it set a standard where people were like, hey, if these guys don't follow the rules, we don't have to follow the rules either. And it's kind of a start of a breakdown in society. What do you think of my little theory there? I think you're right that if the president doesn't respect the rule of law, that sends a horrible signal to the country. And then other people might feel like the president doesn't have to follow the law, neither do I. I remember when Republicans were moving to impeach Bill Clinton, they argued that Clinton had to be held accountable and even impeached because he had lied under oath and that members of the armed services get thrown out under oath. And so as commander in chief, he had to do that. Otherwise it would send a horrible

signal to our troops. Well, I would it would send a horrible signal to our troops. Well, I would say it sends a horrible signal to the American people when the president not only campaigns, but as president proceeds to act as if the rule of law does not apply to him. I would argue that is how Donald Trump has conducted himself. He is the one who has said we should suspend the Constitution because I didn't win. And he's been indicted for more than 90 felonies. And I think it's not because of a partisan witch hunt. It's because that's how he's conducted his life. And at some point, the highest or the lowest has to be held accountable under the rule of law otherwise

the rule of law means nothing there you go and i i think that sets a standard i think it's a signal to people you know when we when people saw nixon resign and and do the right thing and and you know i think you made a statement about you know supporting the constitution i think i think it's really important because once that breaks down once people don't believe in the rule of law, you just have chaos. I mean, and I really thought about hard. I was like,

you're just going to have riots in the street. Basically it's just, it's going to, and then you're just going to be impeaching. Or you'll have chaos like we did on January 6th. Yeah, exactly. Where people just think it's whatever.

Any further thoughts or pitch out to people to order up your book as we go out? Well, I appreciate that. I'm hoping that whatever happens in 2024, the rule of law is ultimately the victor. Let the Constitution prevail. Let the rule of law prevail. And my hope is that the law of presidential impeachment in my book is going to be a little bit of help in resurrecting some respect for the rule of law.

There you go. So important. So important. So thank you very much, Michael, for coming on the show. We really appreciate it. Thank you. I really enjoyed it. Thank you. And thanks to our audience for tuning in. Go to goodreads.com, 4chesschristmas, linkedin.com, 4chesschristmas, chrisfast1, the tickety-tockety, and chrisfastfacebook.com. Thanks for tuning in. Be good to each other. Stay safe. And we'll see you guys next time.