The Dispatch Podcast - Anatomy of an Impeachment Trial

Episode Date: February 10, 2021

We’re on day two of the Senate’s second impeachment trial of Donald Trump and our hosts are here for the breakdown. On Tuesday, the House impeachment managers released a video montage of January 6 in an effort to tie former President Trump’s rhetoric and words to the storming of the Capitol. “[The video] had in many ways the effect that displaying a crime scene photograph has on a criminal trial,” David explains. “It tried to make it real again.” Tune in to hear Sarah and the guys chat about the constitutionality of impeachment, the mechanics of the trial, and the persuasiveness of Trump’s defense team. Stick around to hear our hosts chat about what National Pizza Day means to them. Show Notes: -Senate Impeachment Trial: House Managers’ January 6 Video Montage. -French Press: “The Impeachment Trial Vote Will Set a Precedent. Make It the Right One.” by David French in The Dispatch. -Brandenburg v. Ohio -“McConnell Signals Trump Conviction Is a GOP Conscience Vote” by Jennifer Jacobs in Bloomberg. -“The Constitution Doesn’t Bar Trump’s Impeachment Trial” by Chuck Cooper in the Wall Street Journal. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. I'm your host, Sarah Isgert, joined by Steve Hayes, Jonah Goldberg, and David French. This episode, we are going to dive into both the merits and the politics of the second impeachment trial for former president Donald Trump. Lots to discuss. The conversation, I think, takes some nice twists and turns, stays pretty interesting. And then, of course, we will end with some National Pizza Day discussion. Let's dive right in. We're starting with impeachment. We'll dedicate two of our segments to this, but we'll divide them up, guys, into the merits of the impeachment case and the politics of the impeachment case.

So, David, starting with the merits and the cases, the impeachment managers presented yesterday, and then that Trump's defense attorneys presented yesterday, why don't you give us a brief overview of how the day went? Well, it was an attorney mismatch, which, as we know, Sarah does not always indicate that it's going to be all that relevant to the ultimate outcome. But it was absolutely an attorney mismatch. And most memorably, it was an attorney mismatch in two respects. One, the House impeachment managers came prepared, were meticulous, but the thing that they did that sort of started the day memorably and will resonate for a long time as they put together a video. I've attached the video to my latest newsletter that you can read at the dispatch.com.

And the video contained a lot of footage that we had seen already. It contained a lot of footage that we hadn't seen. But what it did very cleverly was tie the timeline to the various actions and words and rhetoric of Donald Trump. And I thought that was incredibly effective. I think it was very visceral. It had in many ways the effect that displaying a crime scene photograph has in a criminal trial, it tried to make it real again. instead of these abstract arguments about constitutionality, the First Amendment, they did cleverly what prosecutors do, which is make the crime as real as possible for the jury. So I thought that

was very effective. I also thought it was effective how they just essentially walked through what happened, illustrating that this wasn't just about whether or not on that moment on January 6th, immediately as the mob had gathered and as Trump was speaking to them, whether he specifically in that moment incited him and cited the mob, and that's the whole and only thing that is at issue. Because I think one of the things that the Trump defense team wants to do is to make that essentially the question. The question is, what did he did what he said meet the incitement standard in Brandenburg on in the minutes before the January 6th attack? or did it not. And if it didn't, then no impeachment. If it did, then impeachment, but it didn't.

And so I thought that was very effective. The defense was interesting. It was very interesting. Trump's first lawyer got up and quite frankly just kind of rambled. I mean, it was the kind of thing I've seen in courtrooms before. I've actually seen it many times. And it's the kind of thing that you see in courtrooms when somebody hasn't had time to prepare, when maybe something unfolded that they didn't expect, and they're just kind of stalling for time. It was frankly bizarre. A Trump's second lawyer was much more polished and much more sort of prepared in his remarks, but he did something that I thought was inexcusable in those remarks, in those remarks. And the exact quote, So this is David Schoen, one of Trump's lawyer said the trial, this trial will tear this country

apart, perhaps like we've only seen once before in our history. I mean, this is a clear reference to the Civil War. I mean, so this is, on the one hand, you have the Democrats laying out a meticulous case. On the other hand, you had this kind of random rambling argument followed by an improper, over the top warning. And it was a mismatch. But again, Sarah, this is not a trial before an impartial tribunal. It's just not. And it's not supposed to be. And it's not supposed to be. And one side here has an immense advantage that its attorneys were unlikely to have squandered. true, although they did lose one Republican vote. Senator Cassidy switched his vote because of that procedural vote last night on whether the Senate could proceed trying a former president on an article of impeachment. Senator Cassidy was going to vote that no, they could not. And then he came out afterwards and said, look, the House managers made their case that you could. And Trump's defense team didn't really have any argument about why we couldn't. So I voted that way.

Right. I mean, that matters and it matters that you're likely to have the most bipartisan impeachment and most bipartisan conviction vote in history. All of that matters. But as far as the actual convict or not convict, I think the mismatched presentation of evidence is not going to be dispositive. I hope I'm wrong. So I have a constitutional question for everybody. And let me be clear, and yes, this is partly an attempt to bait you into taking the bait. But I have a column out where I chastise, including some of my favorite legal commentators, two of whom are on this podcast as we speak, for the way even people like you, and I listen very closely on AO, you'll say, you'll say it clearly, concisely, in good faith, look, these are not criminal trials. This is not a criminal trial. This is not a courtroom, blah, blah, blah, blah, blah. And then immediately you'll segue into metaphors, analogies, standards, all from courtrooms.

Andy McCarthy does this. Dan McLaughlin does this. Jonathan Turley does. Every single legal commentator goes immediately to the language that they understand, even after they've said this full disclaimer, this is none of the analogies I'm going to now use. are applicable, but I'm going to use them anyway. And it bothers me a great deal. So put that aside for a second.

You let that just fester in your minds for a moment. Oh, you just want to attack and retreat. Okay. No, no, no. There's not a Monten Bailey. I'm happy to defend this ground all day long. But just with that as a contextual point, I don't think there is an insurmountable inconsistency

between voting to say this was unconstitutional. and then voting to convict. I think there's a huge political inconsistency problem, which is probably why most of these guys are now a vote to acquit because it's their fig leaf. But to use your language in a court of law, lawyers question the standing, the jurisdiction,

the constitutionality of all sorts of things. They get overruled. And that doesn't mean like, the trial doesn't go on and that it has no validity at the end. The motion to say this was unconstitutional, unconstitutional failed. The precedent is set. So there it is. And I could make an intellectual case for saying I didn't think this was constitutional, but I was overruled. That is now the binding precedent of the Senate going forward is that these things are constitutional. And then looking at the facts, I found him to be guilty. What do you guys?

think, do you think there's a, what do you think about that as an intellectual matter and as a political matter? That's interesting because I was so frustrated last night because I felt that the opposite should have been the case, that it was absurd to me that someone like a Mike Lee, a Ted Cruz, even Josh Hawley, they are looking at the Constitution. They understand the textualist and originalist arguments. There's not really much question. that you can convict a former officeholder for conduct while they were in office, and certainly when they were impeached while in office.

So what I don't understand is why they wouldn't do the intellectually honest thing and vote that it was, in fact, constitutional, and then vote to acquit. I think that people of good faith can disagree on whether to convict President Trump on the article of impeachment. Absolutely. I just don't think that really, I didn't see any people of good faith making an argument for why a former president in these contexts can't be impeached. Now, Jonah, just real quick here to your previous point, I want to make sure you're not confusing metaphors for actual not metaphors. I think that I'm so much jargon.

I'm pretty careful not to use legal metaphors, but the words in the Constitution are that you are tried on an article of impeachment and that you are convicted on an article of impeachment. Those are legal terms that are also in the Constitution when it comes to impeachment. And so that's difficult sometimes because when you're talking about trials and convictions, people think that way. I have never talked about the senators as jurors. because they are not. They are senators. And I find it very frustrating as well whenever I hear a lawyer talk about the senators as jurors, because I think that's what leads to the confusion that they are, well, jurors. So there. I've always described as a legally informed, I've always described it as a legally informed political process. So the Constitution uses legal language like crimes and misdemeanors, although it doesn't mean those terms in the specific. narrow legal sense of crimes and misdemeanors. It uses terms like try and convict. So it's a legally informed political process, which is one of the reasons why people are often, I think, improperly swayed by technical legal arguments. It makes it much easier to, if you're a defense, you know, if you're on Trump's defense, to do exactly what I just said, which is try to narrow this to the question of, did he commit a criminal act in the immediate lead up to the riot?

and then say, since he didn't, he can't be impeached. And so I do think that there's some susceptibility to that, but as Sarah says, it's embedded in the Constitution, that sort of legally informed political process. And so I think it's fair to use metaphors, as long as we're precise when we need to be precise about who the Senate is and what are the grounds for impeachment that the Constitution and the founders contemplated.

Yeah, look, I don't blame lawyers for talking in law talk. Right? Because that's what you guys do. But you're going to swim in their water, you know? But if my point is, is that impeachment is ultimately about self-government and it is about accountability in government. And the problem with all of the legalistic talk, even from, you know, people I respect and whose arguments I agree with, the net result is that we now have a higher standard for removing a public official, namely the president, than we have for any institution in American life, there is, you know, the coach of your kids' Little League team,

if they encouraged a mob to come down to the field and tear it up if their team, if the team lost, if the president of a museum or a university did anything along these lines, the board of trustees would say, get the hell out of here. I don't care if it's technically illegal. I don't care about the freaking Brandenburg standard, you know, you put shame and dishonor and you unleashed violence, and that's the end of it. And yet, because of all this legalistic talk, which we heard a bunch from showing, you know, basically it sounds like for him, it sounds like the entire due process in criminal, you know, all due process in America will go down the toilet if this guy isn't allowed to run for president again after fomenting, at least partly

fomenting, you know, a mob, mob to ransack the capital. Like, my God, if they can do this to Donald Trump, no young black man will ever be safe from the predations of the Leviathan state. It is nonsense. And it's something that the Tocqueville warned about a long time ago, is that this legalism tends to infect conversations about statesmanship. and civic life in ways that I think are distorting. And that's just, it's my peeve about all of this. Because we've now had three impeachments. Democrats did it too.

It is just, I think the founders screwed up in how they described and how they laid out the impeachment process. I think that your question, though, about whether as a senator, if you voted to, you voted that it was unconstitutional, could you then vote to convict? I kind of believe the answer to that is no. I'm curious what Steve.

thinks about that, but you take a oath to uphold the Constitution that is different. And as a senator, if you find something unconstitutional as a law, for instance, you don't then get to vote for it anyway because you have a duty for that. So Steve, what are your thoughts on Jonah's question? Yeah, so I think Jonah makes a good case. I mean, I agree as a practical matter that a, that a senator who voted that this process was unconstitutional could turn around and vote to convict President Trump. And there was a report last night out by Bloomberg that Mitch McConnell has made precisely that argument to Republican senators saying, in effect, we've moved past this one stage

about the process, and now we are actually judging this on its merits, and you should vote your conscience. I will be surprised if you have too many people do that. I mean, I think Mitch McConnell would be sort of one to watch. You know, there were a series of leaks pretty early on in this process that I believe were deliberate, put out by McConnell's office, telling reporters that he was open to convicting President Trump, that he might even be inclined to convict. Trump and then we've seen him move off of that and then yesterday vote that that the process was unconstitutional. So McConnell's making an argument leaving the door open for Republicans to do exactly what Jonah says. But I think given the weakness of the argument about the constitutionality,

and I agree with you, Sarah, it's a very, I think it's a very weak case. That would kind of defeat the purpose of what they just did. It seemed to me as I was looking at what happened yesterday as the events unfolded, as you watch the video, as you listen to Representative Jamie Raskin, representative from Maryland, who's a constitutional law professor, make the case on behalf of the impeachment managers, it made even more sense to me that the Republicans made the procedural objections that they did. Because I think, and this is where I disagree with you, Sarah, it's virtually impossible to listen to the facts of the case, to weigh the evidence carefully, and conclude that Donald Trump should not be convicted here. I think David wrote a couple

weeks ago, surveying this evidence, if you don't impeach and convict this president at this time for these offenses, why have impeachment? Why do you? Why do? this. And I think that's clear. I mean, you look at what the president did and what he said. And they didn't, by the way, focus much on the call he made to Georgia Secretary of State Brad Raffensberger, where he literally threatened a state election official to commit fraud on his behalf. And it was caught on tape. I mean, think about that. As Democrats put together the article of impeachment, they mentioned it in passing, but didn't focus on that fact, that's incredible. I think in any other context, that that alone would be enough to impeach and convict the president.

So I think what Republicans, what Senate Republicans did was effectively create a safe harbor. They wanted somewhere to hide. They wanted a procedural argument that they could get behind. They, most of them, I mean, this is a, this is me speculating. I want to be clear that it's speculating. I think most of them don't believe the argument they're making. I think they're looking for a place to hide-on process so that they don't have to confront the ugly facts of the case

because they know if they confronted the ugly facts of the case, it would leave them no alternative but to vote to convict. But before we get further into the politics of it, which is where Steve is taking us, one last thing on the merits. I think we all agree that it is a shame that President Trump couldn't get Lionel Hutz to be his lawyer. because it would have been better than that caster guy.

But on the merits, let me put this way. I'm willing to have a debate. I think there are good faith positions on the textual argument that say you can't do these late, you know, these after the presidency convictions or trials. I think they're wrong. But I think honest, serious people can make those,

you know, just do go to. the text and say, look what it says, I think you can make some other sort of, whether some other sort of angels on a head of a pin arguments, I'm willing to sort of entertain, I cannot take people seriously who make this First Amendment case. And I, is there, have either, have any of you seen, because clearly we didn't hear it from Trump's own lawyers, but is there an actual, colorable, plausible, don't want to smack someone in the head with a semi-frozen flounder when they make it case

for the president of the United States being protected by the First Amendment when he lies about this, that, and the other thing and incites a mob and anything. I just don't, I literally don't understand how people can make the case. Every time I read about it, I'm like, this is really stupid. No, is the answer.

I think that you can make the argument that you shouldn't, vote to convict him because what he said was such core political speech that, for example, is protected by the First Amendment, and we shouldn't remove a president for speaking his mind on a matter of political importance to the nation. It's a prudential argument. The legal argument is so wholly without merit it is difficult to have much of a conversation about because it doesn't matter whether it would be protected by the First Amendment whatsoever in the impeachment context. But there's a prudential argument for it. And the problem with, here Jonah, I'll use a legal

metaphor of sorts now. We have an adversarial system in our legal system for a good reason. It's not just fairness to the accused. It's also because we believe that our our system of justice is best served when we seek truth by having, you know, a judge or a jury hear passionate arguments and advocacy from both sides to help them pursue truth. The problem then in an impeachment trial where you have house managers come incredibly well prepared and Trump's defense attorneys not come prepared at all is that we are all left to fill in what a good defense might have looked like. And I wonder whether, in fact, that actually a nurse somewhat to Trump's benefit because they were so bad and so unprepared. They didn't

make any coherent arguments, especially Castor, of course. Some of the transcript, by the way, like, I was going back to listen to things again to try to see what, like, if I was missing it and then read it instead of listen to it and like, it got more confusing, not less. The part about Ben Sass is truly something to behold. That was some Brick Tamlin stuff right there. I mean, he might as well just yelled, I love Lamb. Can I ask, can I ask, I wanted to ask you guys this question. So can we pause and spend just another minute on the merits of the case?

Because I wanted to ask, in particular, David and Sarah, this question. I had the same thought as I was watching this. Wow, this is a really awful defense. What's the good defense? What does the good defense look like here? I mean, that's, that's, and I mean that sincerely, like, you, you, You're lawyers. You do this for a living. If the president called you and said, you know, you have, I won't use the criminal defense attorney metaphor for fear of making Joan angry. But you, if you felt an obligation to defend the president in this context, what would your argument be? Well, in fact, Steve, we have an entire AO episode on this. And we went through four or five different buckets of types of defenses that his team can use.

that we thought would be a varying effectiveness levels. But David, tell me if you... Okay, I'm about six episodes behind on A.O. right now. Yeah, that's about where it is. But, David, I think that what we found to be the most persuasive were the prudential arguments. Yeah. The arguments that, of course, you can convict the president,

but you shouldn't. And that, you know, you shouldn't because this should be left to voters. this is a deeply un-democratic thing to do. You're not removing him from office. You're not removing a threat to the republic. What you're doing is removing him from holding office in the future. And therefore, you're saying, you know, if you're a Democratic house manager,

that, you know, this is our democratic process and this is why we have to do it. And Donald Trump is a threat to our democratic process. And the way that you're then acting is by doing the most undemocratic thing we have available, which is refusing to let the American people decide whether, in fact, that person is a threat to our democratic process. I think that is the best prudential argument and an effective one and one that, again, people of good faith, I think, can come out on different

sides of. The problem is that there are legal arguments about why this can't go forward or why the president is technically off the hook legally are unsound, but also I don't think are very persuasive. Like the house managers are making this deeply emotional argument. Make an emotional argument back at them. But I'm very unclear on whether these attorneys have the capacity to do that or whether, you know, they were hired late in the game. Maybe they really came unprepared. I just don't understand, you know, it's your moment in the sun. Pull some all-nighters. Do what you got to do. Have an outline for your argument. I don't know, like some really basic preparations. stuff.

So I don't want to step on David's answer on this, but I have, I have, I have an answer on this. One is a, one is a legal-ish, technical one, constitutional one. Andy McCarthy has largely persuaded me that the, the, the actual article was badly written and written in a way to screw with Republicans rather than to attract Republicans. And much easier to make the case, dereliction of duty, much easier to make the case of violation of his oath or abuse of power than the incitement thing. And by focusing so narrowly on the violence of that day, which they're now backtracking

from, if you read their memos, it's much more about the dereliction stuff, which I just think is a slam dunk. And so, like, that's what Chip Roy did. He said, look, what Trump did was terrible, but he didn't do what this article says. I can't vote for what this thing written this. way. And so that leads to the political issue. And this was my problem with the first Trump impeachment as well, is the obvious human, reasonable common sense defense of Donald Trump in both cases, much better in the first one than the second impeachment, is what Trump did was

terrible, but is it really worth having an impeachment? And the problem that Trump inflicts upon the party is that he requires people to say, like in the first impeachment, you had to say what he did was perfect. Never before has there been a more perfect letter, which was actually a phone call, but he called it a letter for some reason, because his brain doesn't work. You have to take the 100%, not only did what is what Trump did not impeachable and not wrong, it's glorious. And they have the similar problem in this impeachment as well. If the Trumpists and Trump would let Republicans have a little room to say, I denounce what President Trump did, it was terrible, but I think we need to put it behind us. That would give them political maneuvering room.

But instead, you get this nonsense stuff because they're not allowed, you get the constitutional fig leaf stuff, or you get, you know, Mike Lee of all people saying, give the president a mulligan. A mulligan, I know. And the reason why it's a political problem for these guys is I would have a lot more sympathy for people who say making the prudential case against it or making the constitutional case against it if I heard a fraction of the outrage from them about what Trump actually did.

Like you have credibility with me if you say, as Chip Roy did, what Trump did was outrageous and impeachable. but I think this impeachment is wrong or blah blah blah blah you can't simultaneously let Trump off the hook politically and morally and psychologically and then as Hugh Hewitt is doing these days get outraged by the affront to the Constitution that this impeachment is that that is just a bridge too far for me and I can't take it seriously David well you know in my in my portion of our advisory opinions I basically said look if you're if you're if you're a if you're you're Trump's defense attorney, what you do is you know your jury, you know your tribunal,

that's the Senate. The Senate is not an impartial jury. And what you know is it's completely stacked in your favor. So essentially what you're going to want to be doing is to give them talking points that sound good to people who are not think, who are already partisan predisposed towards Trump. And in that sense, even though the First Amendment argument as on its merit absolutely drives me nuts. It's the kind of argument that in a GOP world, because again, what you're wanting to do is keep together GOP world, and that means keeping together GOP base, and a GOP world prime to see attacks on free expression and prime to see, you know, everyone wrapping them, there arms around cancel culture, cancel culture, cancel culture, these First Amendment arguments,

even though they're specious, even though they're ridiculous, actually do resonate. And so that's why you make the argument because you're not in front of a real judge who is going to say that is absolute total garbage. You're in front of senators who are going to then turn around and go onto Fox or to Newsmax and say, well, I mean, First Amendment here. And so in a way that this argument, which is garbage legally, is they perceive it as gold politically. And so that's part of the cynicism of this project and the cynicism of this entire enterprise is that what is happening is the defenses and exercise and providing talking points to people who've made up their mind to then turn around and justify it. Now, I do have, to go back to

the original point about constitutionality, I do have, you know, there are certainly circumstances, let's say that if you're a judge and you have dismissed a case because it was, you believe that there was an unconstitutional aspect of the prosecution. You're reversed by the court of appeals, and then you come back and let's say you have a bench trial, you can have obviously, and of course, using all these legal comparisons, then go ahead and try the case according to the constitutional rule set by the superior court. I'm more with Sarah that this is not exactly that situation, but if you need a fig leaf to examine it on the merits, there's your fig leaf, and there's, you know, reporting that McConnell has said,

that maybe, you know, maybe senators now will be free to vote their conscience or whatever. So there's some sort of infinitesimal tiny slice of hope that this will be actually evaluated on the merits. But if you're the defense, I think what you're doing is what you're saying is, I know this isn't going to be evaluated in the merits. Nobody wants to evaluate it truly on the merits, truly. So therefore, I'm going to give you various ways not to. So Steve, last night, one of Trump's impeachment attorneys, David Schoen, was on Sean Hannity's program, and he gave a different argument that we had not heard on the floor, and I want to read it to you. He said that Democrats have used rhetoric that is just as inflammatory or more so than Trump. And we actually have seen that argument now bubbling up, you know, videos of other Democrats saying things, you know, like don't let Trump administration folks eat in peace, you know, get them at restaurants, et cetera.

We've seen that before. But this is pretty, uh, Democrats have used rhetoric that is just as inflammatory or more so than Trump. But, quote, the problem is they don't have followers, dedicated followers when they give speeches. It's, yeah, I saw that. I have questions about whether, you know, another argument that they made yesterday was that that you shouldn't impeach and convict Donald Trump. You should arrest and convict their client.

That was also a novel one for attorneys to make on behalf of their client. It's like, please don't prevent him from running for office. Please put him in jail. Yeah. That was. I'd take that compromise, by the way. They could get their wish, right? I mean, the Georgia Secretary of State's office opened an investigation into the call

that would be sort of a first step towards a criminal investigation of that call. So maybe, yeah, I mean, that is a, so we say, a very creative argument. I think if you're, if what he was trying to do was what David is suggesting they were trying to do, which is just give, give a political argument that others can then amplify, you know, then you send people out on all of the places that, you know, Trump enthusiasts go to get their news and information and give them the tools to make the argument they want to make. then that could be an effective argument. I think if he would have just stopped with the what about us point, it's not, I mean, look, I don't think it, it certainly doesn't, it's not comparable to what the president of the United States did when he incited a mob to attack the capital to block an election.

But, you know, Chuck Schumer, I can't remember the exact words, but what Chuck Schumer said that was considered a vague threat during the last fight of about, Supreme Court nominees was pretty over the top. And it is the case that Democrats have made similar claims. Now, again, I don't think that that's an effective response to the fact set that we have here with the president. But if you're talking about just giving Trump supporters something to be excited about, you could have gone in that direction. Not long ago, I saw someone go through a sudden loss. And it was a stark reminder of how quickly life can change and why protecting the people you love is so important. Knowing you can take steps to help protect your loved ones and give them that extra layer

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The other thing, though, is who the House managers are. Eric Swalwell, you know, deeply liberal, highly, hotly partisan, democratic members of the House. Now, according to the House rules, the House managers have to be House members. But first of all, they don't have to be members of the majority party. Nancy Pelosi could have appointed Adam Kinzinger. She could have appointed Liz Cheney. You could have had Republicans making Republican House members making the case to Republican senators. And, you know, I mentioned this on Twitter and some folks came back at me and said that that was identity politics. It shouldn't matter who the messenger is. The message is the facts and yada, yada. My point is that the message is the facts. would be different, not just that it's coming from the, you know, mellifluous sounds of Liz Cheney's voice, but that in fact, how Liz Cheney would seek to persuade Republican senators is markedly different from how Eric Swalwell would. You could also change the House rules.

And here's my question to each of you. Do you think there's a world in which you could get to 67 votes with the Republican senators that you needed if, for instance, Nancy Pelosi had changed the House rules and appointed Chuck Cooper, who is a well-known Republican attorney. He has worked in the Reagan Department of Justice. He represented Jeff Sessions. He hired such important and interesting people as me when I was a 1L in law school, which I think is obviously like a top on his Wikipedia page. He most recently wrote an op-ed in the Wall Street journal about why Donald Trump absolutely could and should be impeached. If Nancy Pelosi

had Chuck Schumer as the House manager making the case to Republican, oh, that wasn't even Freudian. That was something else entirely. Chuck Cooper making the case to Republican senators, they already have the Democratic votes. Could you in any world have gotten 17 Republicans to vote to impeach the president, Steve? have made it a lot harder. The Republicans seem, the Republicans looking to give Donald Trump a pass here, I think are pretty resolved to do so. So I'm, I'm skeptical. But there are things I think they could have done very early to have made this a different process. Remember, Adam Kinsiger asked to speak on the House floor during the impeachment debate on the Democrat side to help the Democrats make

the case that they were making. And he was denied that opportunity by the Democrats. We saw this, by the way, in President Trump's first impeachment. Democrats made decisions again and again and again, including not asking Justin Amash to be a part of their team that were partisan decisions that I think were meant to rile up their base, their party, rather than to prosecute a case against the President of the United States. They did it again. I think if you had some, if Nancy Pelosi had been able to change the rules

and allow, you know, Chuck Cooper, Jonathan Adler, some of the others who have made this argument, maybe Liz Cheney, Adam Kinsiger, think about what the coverage of the, the vote, the trial would have been. It would have been a totally different kind of coverage,

which I think would have put additional pressure on those Republicans who are ducking at this point. I don't know that it would have been enough to change what we assume will be the outcome here. But I know enough to know that it would have been preferable if you believe that the president should be convicted. Jonah? Yeah, so I basically agree with Steve. I think the issue is less, I mean, first of all, I think, it's a little disheartening to discover how many people follow you on Twitter, Sarah, who don't know what identity politics are.

Because trying to create a bipartisan impeachment team is not identity politics. I think the crucial issue really was timing. And, I mean, I don't need to get too high on my hobby horse about how Congress has been utterly gilded and doesn't take itself seriously as an institution. but a serious Congress would have moved to impeachment and conviction with lightning speed in another era if another president had done something like this. And if Nancy Pelosi, who, look, I mean, I think we all can agree that is a very partisan figure, if Nancy Pelosi thought of herself as the head of a brand,

of government, instead of a head of a faction of a party in government, her first instinct should have been, all right, how do we speak as a unified body, as an institution, not as a party, and it would have been, you know, not only would have been Republican managers of the impeachment, it would have been calling in Republicans to help draft the articles of impeachment. Like, if you had Liz Cheney and Kitsinger and even Chip Roy in the room and said, hey, look, this is the way you leave them no safe harbor. This is how you write this article of impeachment. You do it this way, not, you know, don't do it narrowly. You want to do it as big a catch-all as possible so that no one has any place to hide. And if you had allowed McConnell to act,

if you sort of put pressure on McConnell to act on his passions quickly, you could have had a trial before the end of Trump's presidency. The problem for that is that McConnell was so concerned about the Georgia race. But that's how it should have played out. And I think in that circumstance, if it was a bipartisan manager team, I don't think you needed to bring in Chuck Cooper. I think it just needed to have been working from the establishment. that this was an assault on the first branch of government, and we are going to defend

the rights and prerogatives of the first branch of government from an unconstitutional and violent assault from the second branch of government, and it has nothing to do with party. But that was not their instinct. I don't know if it was all cynical ploy to deliberately create wedge issues for Republicans, or if that's just where a group think among Democrats goes naturally, and it doesn't occur to them to get outside of their comfort zone and talk to Republicans about stuff. hunches it's true for some and not true for others, but I don't know. But I think there is a world in which you could have convicted. You had to play on the passions of the moment and act fast. And by

slowing this down, it has allowed people like Rand Paul to sort of create this bogus safe harbor stuff. David. You know, I'm going to make a bold statement that we do not live in an era of statesmen and stateswomen. And it's, in fact, one of the reasons why we ended up with the President Trump in the first place. And so I think that what we've got here is some people who are quite frankly kind of overmatched by the gravity of the moment and unable to get out of their own way, their own partisan way. And there was an alternative, Sarah, that you mapped out that turns this into the kind

of argument that in its strength and in its bipartisan nature is historical, all, it's historic all by itself, all by itself, a coalition of Democratic and Republican officeholders stride into the Senate, and they demand that the Senate do its constitutional duty as leaders of this constitutional republic and cleanse the constitutional republic of a political figure who tried to bring it down, who tried to bring it down. And there's a story there to tell that almost tells itself it's so obvious. It's so obvious. But we have leaders who cannot get out of their own partisan way.

Speaking of which... Oh, sorry, David. No, no, speaking of which? Well, speaking of which, McConnell voted with the majority of Republicans in the Senate that the continuing the trial was unconstitutional, Benji Sarlane, who works at NBC News, said, the likely interpretation of this move after McConnell's intersurface, made a huge show of hyping him up as a potential yes on impeachment is that the civil war is over

Trump won and leadership won't stand in the way of his retaining influence over the party. Steve, you have thoughts on this. You disagree. Yeah, I don't agree with that. I mean, look, I think I think he's right that McConnell's team, you know, went out of its way to let people know that he was thinking about voting to convict. And there may be. be some some truth to his speculation about what what this means and where this goes let me let me make a glass half full argument here you know for the past five years past four years and we've talked about this repeatedly on on this podcast so i won't dwell on it but it's been the case that republicans in congress both in the house and the senate were in different places than

rank and file Republicans around the country. Republicans in Congress would rip Donald Trump to shreds in private and then go along with what he was doing in public, whereas rank and file Republicans, more or less, were supportive of what the president was doing. He never had the 95% approval among Republicans that he always claimed, but he did have 89% approval and did pretty well with Republicans, or at least the Republicans who stayed inside the Republican Party. I think we're seeing a turn now. I agree with David that there are, as you survey the landscape of Republican elected officials, there are a lot of small people there. Having said that, there are some who have stood up, and I think stood up in an important and uncompromising and unapologetic ways, like Liz

Cheney like Ben Sass like Adam Kinsiger, even, you know, freshmen like Peter Meyer, who we had on this podcast a few weeks ago, Anthony Gonzalez, who said, I'm willing to lose my seat because this was really important and I think I did the right thing. If you look at the willingness of some of those people to do this and to make the argument, to me, whether you agree or disagree with them, I mean, you could actually think that they're wrong on the case that they're making, on what their conscience is telling them to do and still admire the fact that they're willing to take what's obviously a huge political risk in order to do it. But what's interesting to me is that there's a smaller percentage. If you go by recent polling, the Congress is now lagging the populace

and Republicans in particular on this question of whether Donald Trump should be convicted. If you look at polling, there's a CBS poll out yesterday. I think 21% of Republicans said that the president should be convicted. You look at how many people in the House of Representatives or what percentage of the House of Representatives voted, it's like 10%. So you now have a public, a rank-and-file group among Republicans who is more willing to cast Donald Trump over,

to move beyond Donald Trump, than it appears you do in Congress, even though I think the more people hear folks like a Ben Sass or like a Liz Cheney make the arguments they're making, it will be, they will be more inclined to join them. I think, first of all, how pissed off are you, I mean, not if you ran Paul who truly doesn't care about the facts, but if you're, you know, I don't know, Roy Blunt, you know, one of these guys who actually wants to go back to their state and their constituents and with a straight face, explain why they voted to acquit and all that kind of stuff, and how pissed must

you be at Trump's lawyers for giving them like nothing? Like, you know, I mean, you kind of feel like they must be like Jerry McGuire going to Cuba Gooding Jr. You know, help me, help you. I mean, like, give me something. And, um, but part of the problem, like, despite what I said about how I think you could vote to convict, even though you voted that the process was unconstitutional. I don't think there's an insurmountable inconsistency there. But part of the problem they have is that if there is new evidence, let's say just true new evidence comes out, damning evidence, which I don't think is impossible. And you have Trump on tape saying, look, they'll break a few windows, they'll give a few black

eyes, whatever, it'll be great, and, you know, Congress will cave and I'll stay president. Or something, you know, some smoking gun. If you've taken the position as a senator that the evidence doesn't matter because this trial is unconstitutional, then you've got yourself a real problem about explaining where you're coming from to your voters. And you do hear that the Democrats are offering a plan on showing stuff that we haven't heard before. I think there is a non-trivial chance of we're looking for a rosy scenario that you get, I don't know that you get 17 Republicans,

but I could see it hitting 10, who if Democrats do it right and the Trump lawyers continue to set new standards for poor performances and impeachment trials, I could see some Republicans just saying, just saying screw it, particularly the ones who are retiring, but I still don't see how you get to remove it. Well, let me, let me ask you this.

I mean, if you start to get, let's just take your scenario, Jonah, if you start to get to 60 or 61, then you're in striking distance. Right. Does that create its own momentum or is that just complete, total pipe dream, shut up, David, stop talking about this, ridiculousness. Pipe dream, shut up, David, stop talking about this. Because think about someone has to be that 67th vote. Sarah, give me something for one second, please.

Just for one second. No quarter. Someone has to be that 67th vote. And when you're talking about the 67th vote, like go tell me who the 67th vote is. And then I'll tell you that that person is not going to be bowled over by momentum. Mitt after they hit 66.

Because his last name starts with an R. Boom. I just answered your question. Yeah, I think you did just answer your question. There is, I will say on that point that Jonah makes, I mean, there is a lot more to know about what was happening in the White House during all of this. I mean, there were reports, you know, within, within hours that not only was the president not horrified by what he saw, but that he was excited and pleased by what he saw.

there are, you know, there are indications that folks around the White House had been in communication with, with some of the people who were the leading agitators. You have tweets from Steve Bannon the day before January 5th saying, this country's going to see something tomorrow like it's never seen before. You know, there, we'll wait. We don't want to to jump to conclusions, but I think it's entirely possible that we'll learn a lot more about what the White House knew, what the president knew, what his advisors were up to. Because we know what they believed at the time. We know what they were saying in public at the time.

It's easy to imagine that we will find them acting on those beliefs in private. Do you think that anything that happens in this impeachment trial matters? by what I mean by that is not that many people are watching this impeachment trial, not even that many people are following this impeachment trial without watching it.

Is there any argument that either the Democrats or Trump's defense attorneys can make that can cause lasting harm? So, and this is not going to be one of those examples, but for instance,

yesterday, Caster, the Trump defense attorney who came, what appeared to be wholly unprepared, was making an argument that we shouldn't look back to what the words meant at the time of the founding because that's why we had a revolution against England and we'd have a king and a parliament and it was bizarre because we have previously lived in this world where sort of the federalist society textualism, originalism is taken as kind of shibboleth.

That was basically a facile understanding of what originalism is, but also a really dumb argument for why we don't look at what words mean at the founding. Now, again, I don't think that's going to cause any long-term damage to originalism or textualism down the road. But are there other things they could say or do that could actually hurt the party in 2022 that would cause Mitch McConnell to, you know, throw up a yellow flag? Yeah, look, I think this is, I think this is all damaging for Republicans, and we're seeing it. It's showing up in the polling. There's a new poll out by the Associated press. I think it was today, today, that the Republican Party has lost 12 points in its overall favorability rating. The Democrats now have a generic ballot advantage, 48% positive view of

Democrats, 37% positive view of the Republican Party. And you're seeing this. And you're seeing this again and again and again, you look at the, you know, the fifth of Republicans who believe that Donald Trump should be convicted. You have numbers creeping up into the 30s when you talk about whether he should 30s and 40s when you talk about whether he should continue to be a leader of the party. That is an unbridgeable divide in the short term. Now, the party will likely recover and move on. But, you know, the people who are pretending, I mean, there's a debate inside the party. I've had this discussion with a lot of people who are Republican Party leaders. And, you know, the question was, should they try to throw Trump overboard? Should they

stay all in on Trump? Or is there some kind of a hybrid path? And it seems clear that those leading the party have chosen the hybrid path for reasons that we can all understand. I mean, I think the Republican Party is in trouble if they, you know, you can't throw over the 70% of people who still love Donald Trump, but neither can you be very successful, either in a midterm election or a presidential election, if you have 20% of the party leaving. And if independents think that Republicans are, you know, have a dim view of the Republican Party. So all of this, I think, it adds up to those numbers and makes it. very difficult for the Republicans. I don't know that we'll have a, you know, some new epiphany during the course of the trial. Democrats have seemed to suggest that they want to move on to get back to Joe Biden's agenda. I think if they do that, it's a mistake, but that seems to be the

direction that they're heading. There's talk of them not even calling witnesses. So I'm not necessarily expecting that there'll be a huge moment, but just the fact that people are having to relive the events of January 6th, you know, people have sort of put it behind them or hadn't paid attention. You had Roy Blunt yesterday, a Republican senator from Missouri, say, this is the most video I've ever seen when I sat down and watched that. Well, that's probably true for people who are paying attention to trial in various media, too. So just those reminders, I think, hurt the Republican Party. Jonah, does anything about this matter?

Can anything about this matter? Well, as you remember from the case of Law v. Nothing matters. No, look, I think I basically agree with Steve. And I think the point that you make about Democrats being the better

originalists and textualists than Republicans, you know, right now it's more symbolic than anything else. But you could envision in a world in five years from now, given the utter disregard we've seen from Ted Cruz, Josh Holly, and others, and a bunch of congressmen towards black and white constitutional issues when it came to, like, the Texas lawsuit and all of this other stuff, without them paying much of a price from rank and file Republicans for giving away, for giving up on their sort of. stability to the Constitution as the highest principle, you could look back on this in five years and say, wow, this was the time when the GOP just sort of gave up as a political matter on being all in for, you know, originalism or, you know, supremacy of the Constitution and all things. I certainly can't take Ted Cruz seriously the way I once did on constitutional

matters anymore. And I think that matters. And so on the politics side, I think Steve is right. as a numerically, Republican Party is a minority party in this country. It can get, if it really tries, 48, 49% of the population. And in that scenario, I mean, that's why I think the Democrats are being cynical about a lot of this, is they just want this as the wedge issue. If you can divide even 15, 10% of the GOP away from the GOP, first of all, it will cause the Republican Party to embrace crazies to make up for the shortfall of sane people, right? That's one of the reasons why we see the Q&N stuff manifesting itself is that they can't afford to cut off the Q&N people having lost so many of the suburbanites.

And so then you can get this auto-catalytic a thing where, you know, one of my favorite lines from Orwell is a man can be a failure and take to drink and become all the molar failure because he drinks. this process that the, that is unfolding in front of us of the GOP, shedding suburban voters by hugging Trump and then needing to make up the shortfall by hugging even crazier voters, that could lead it to being a real rump party in, in, in almost no time at all. And so I think this stuff does matter. It's just, it's going to be very difficult to point a straight line of cause and effect through it. It's, it's a more dynamic process. All right. Last to you, David, does anything matter? I think it matters. I think it matters. And I think that there's something that we haven't talked about yet. And I think it's interesting that we haven't talked about it. And that's

Trump's silence. So I think it's going to be hard. And he's been silent now, largely silent for more than a month. And it could be that he's lying in wait and he's ready to spring back in action with a series of rallies or he's going to get back on the phone all the time with Sean Hannity. So the silence, I doubt the silence is going to fully last, but let's just put it this way. A politician generally has to work to maintain their hold, especially on their hold on a base beyond the fanatical, beyond the most, most dedicated, which is going to be, which is a small slice of the hole. And so what we have right now is a silent Donald Trump with sort of the lingering hold that he has. And if he doesn't reverse course and begin to act,

do work to preserve that hold, other voices are going to fill this vacuum. I mean, there are other people going to seize an opportunity to try to seize a mantle of leadership against the Biden administration. And so I think that one of the interesting things that could matter is, wait a minute, what is Trump going to do now for the next several months or next year, next two years that could end up making the defense now of him look even more ludicrous and cowardly. And so that, you know, when 2018 rolls around and you're, you know, maybe you're a moderate Democrat running in a, and a congressional district of a vulnerable Republican, I can easily imagine a scenario where you make them look clownish, just clownish with the barrage

of ads and, you know, a coherent argument, especially if there is, Trump is not the giant on the scene anymore, that especially if some kind of a pathetic has been. And I think a lot of people are sort of walking forward as if the reality that exists right now in the Republican Party with this really angry part of the base is going to be the same in six months, it's going to be the same in nine months. And I'm just not convinced of that. Well, channeling my inner John McLaughlin, wrong. None of this will matter. Nobody's paying attention to this impeachment hearing and everyone has already made up their minds about Donald Trump one way or the other heading into

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the powerful backing of Amex. Presale tickets for future events subject to availability and varied by race. Turns and conditions apply. Learn more at MX.ca. final final topic today is national pizza day there are different types of pizza that one can be a partisan toward i'm curious whether steve because he's from wisconsin loves chicago style pizza or because he's from wisconsin hates those damn illinois folks and their pizza well i mean look we we have some kind of reserved

fondness for for people from Chicago we we those of us who grew up in Milwaukee consider Chicago one of our finest suburbs but it's pizza is a little sloppy casserole-ish I don't I don't ever turn it down if somebody gives it to me but I don't turn much food down somebody gives it to me but it's not the best the best pizza is from a place in Milwaukee he called Zafiro's, and it is the thinnest, crispiest crust you can ever have, almost like having pizza on a better-tasting saltine cracker that's massive. And the ingredients are so good. I'm now literally my mouth is watering as I'm describing it to you.

But there's a close second years ago when I was covering some race in Michigan, I was traveling with Jonathan Martin of the New York Times. And he took me to a place, and I'm going to forget the name of the actual establishment. But it is one of the sort of premier pizza joints in Detroit. And that pizza is so unbelievably good. I could even eat a couple pieces that didn't have meat on it, which is, I mean, basically my view is there's no reason to have pizza if you're not having a ton of meat on it. But this pizza was so good that it was worth having.

And now there's a company, I don't know if you guys know this, called Goldbelly, where you can order basically frozen versions of the best dishes at the best restaurants in places around the country. So if you had a favorite restaurant in New Orleans, there's a chance that Goldbelly could get you that meal, it to you on dry ice, and then you could eat it. And it's called Gold Belly because it would be cheaper for me to put gold into my belly. I mean, maybe, maybe.

I think it's very expensive. I do think this is like, you know, you go as a sponsor, Sarah. Thanks. You do this. You do this. Well, if they were a sponsor, of course, we could offer people 15, 15% off if you just type J-O-N-A-B-E-L-L-L-Y. but Jonathan and his wife Betsy sent me three of these pizzas from Goldbelly

maybe a month ago absolutely extraordinary and while you guys are answering I'm going to find out the name of the actual place because it's important to name the place so anybody who's close can can go there Jenna I feel like you almost certainly like New York style pizza so I'm not even going to ask that and instead ask whether you've ever eaten New York style pizza with a knife and a fork. Don't lie. I have in part because I, there's a pizza place in D.C. that I love, two Amy's. Yep.

And I learned from them how to, that a great way to eat, if it's good pizza, eat pizza is you drown it in an arugula and you basically use it as a salad plate and you use a knife and fork and it's fantastic and so that is so weird my husband is obsessed with putting arugula like so much arugula on his pizza and this is a guy who otherwise doesn't know what a vegetable is okay so i want to but i need to do i mean i know i'm not i'm technically sequestered from the fact-checking operation here at the dispatch because you know they just don't trust me for some reason but My extensive research shows that today is February 10. National Pizza Day was February 9.

And today is National Umbrella Day. And I just want to put that out there for you guys to ponder. My only question for, like, obviously I prefer New York style pizza. I think if you just, there's this rule on Top Chef, which is the show I've been watching for now almost 20 years, where if you're going to make results, If you're going to call your dish risotto, you have to make it technically perfectly as risotto. And every time someone tries to be creative with it, the judges kill them.

And they say, look, this is delicious, but you called it a risotto. It's out of my hands, right? It just, like, it has to be done this specific way. And that's my feeling about Chicago pizza. If they just called it casserole, pizza casserole, I would be like, hey, this is pretty good. you know, or like pizza kish or Italian kish, whatever. But because they call it pizza, it fills me with rage because it's not pizza. It's just not pizza.

But the question I have for Steve is, what is up with Midwesterners? And you kind of gave it up when you said the saltine cracker thing, which just proves that you should not be a food writer. But I said, by the way, speaking of fact checking, I said much more flavorful saltine cracker. Roll the tape back. Yeah, okay. Nice try to mischaracterize it. Nice trying to mischaracterize me. That's, you know, it's like the saltine cracker is by definition a flavorless thing.

So, anyway. I was talking about the texture and the crispness of it, not the flavor. All reasonable people will take my side in this disagreement. But my question is, why is it that Midwesterners so often cut up their pizzas into these little tiny friggin squares? Is it because you guys have salting crackers on the brain? Is that what it is? I mean, what is that about? No, because you can eat way more without feeling guilty about it.

Because everybody knows if you just have a traditional pizza slice and you cut it in the little pie shape, there's a certain number you probably shouldn't go beyond if you want to be, you know, reasonably healthy. If you're just throwing one square after another into your mouth, how can you possibly be held accountable? How can you possibly count how many you've had? You just lose track after like three and then you're fine. And that's the right way to do it. The pizza place in Detroit is called buddies. And it is absolutely phenomenal. So if you're in that area or you want to experiment with Goldbelly,

which is, again, not a sponsor, not yet a sponsor, you should definitely order from buddies. It's extraordinary pizza. David, you have traveled around. Please do not tell us about Nashville pizza. Pick a regional pizza as a traveler, as an explorer, as an explorer that you would eat for national pizza day. I put my money where my mouth is. 20th anniversary. So on our 20th anniversary, Nancy and I kind of have a history of not making a big deal out of anniversaries. So get up. Nothing much going on.

I said, hey, do you want to go to lunch? And she says, sure, let's go to lunch. Jump in the car. Head past our little town. Head towards Nashville. Head past Nashville. Take a right turn. head east, get to the airport, jump on a super cheap Southwest plane as a surprise, fly to Chicago where we had, sorry Jonah for our 20th wedding anniversary, Chicago Deep Dish Pizza. Which place, Giridanos. Say Giridanos. It was Giridonos, of course. Yeah, of course. Oh, I thought it so badly. Not only do I so fully endorse Chicago Deep Dish Pizza, but Nancy does as well, and that was our 20th anniversary. It was fly to Chicago for Giordanos and eat some Giordano's, and it was fantastic.

It was great. So, yeah, and as far as National Umbrella Day, I think I might be the only, I might be the only dispatcher who has a house stark umbrella from Game of Thrones. Wait, did you just call it an umbrella? You're the only dispatcher who has an umbrella? Umbrella. What's, how do you pronounce an umbrella? Oh, my God.

Umbrella. Umbrella. No. Not an umbrella. This is like Jonah and compass. All right. I have no idea. We're saying the same word, Steve.

We're saying the same word. You're emphasizing the wrong syllable. David is absolutely right. The Girodano's pizza is the best pizza in the country. Also, it is Valentine's Day coming up and we'll see whether David can top his 20th anniversary thing for Valentine's Day. we have a Valentine's Day tradition in my house of eating five guys and watching Zero Dark 30. So that's two good choices. My favorite thing to do. All right. Thank you listeners for joining us on National Umbrella Day as we discuss National Pizza Day. We will see you next week. Have a

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