Impeachment and Presidential Powers

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Practice Groups, was recorded on Monday, October 28, 2019, during a live teleforum conference call held exclusively for Federalist Society members.

 

Micah Wallen:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is entitled “Impeachment and Presidential Powers.” My name is Micah Wallen, and I’m the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are fortunate to have with us John Malcolm, who is the Vice President of the Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies, and Senior Legal Fellow at the Heritage Foundation.

 

We also have Professor John Yoo, who is the Emanuel S. Heller Professor of Law at the University of California at Berkeley School of Law. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Professor, the floor is yours.

 

Prof. John C. Yoo:  Hi, this is John Yoo coming to you from the state of nature in California, where law and order has broken down and no electricity seems to be found anywhere. If I have bad sound quality, I apologize. I’m sitting in a parking lot next to a Starbucks trying to use Wi-Fi that comes hopefully out into the parking lot. And I see thousands of students surrounding -- crowding around every hotspot to be found.

 

So I thought what we would do is break up the discussion on impeachment for now into three different topics. And then John and I will go back and forth on each one. First, the facts, then the process of the House investigation and any Senate trial, and then, third, the substantive constitutional issues. So in the first group, I would put the question of what exactly do we think has happened here with President Trump and Ukraine? What facts are we getting out of the investigation? There have been no real hearings that the public has had access to.

 

Second then, in the second group, we’d put questions of the procedures that the House is using to investigate. And then the third would be, I think, the question of high crimes and misdemeanors. Is this really what -- is this kind of fact situation, even as it’s developing -- is this the kind of thing that the Founders really intended impeachment to be for?

 

So let’s start with the first group of questions about the facts. So we’re getting an almost seems to me daily leaks about this testimony and that testimony from this former State Department official or that former NSC official. But in short, the facts seem to be this: President Trump had a conversation with the president of Ukraine in May of this year. In that phone call, and we’ve all seen the transcript now that was released by the White House of that phone call, it appears that President Trump, in addition to congratulating the new president of Ukraine on his election -- I don’t want to mispronounce it, but I believe it’s Volodymyr Zelensky. I’m sorry. And this phone call, by the way, is in April, not May.

 

In April, he suggests, “Well, I would really like you to conduct an investigation into this company. This company is called Burisma. It’s a Ukraine natural gas company. And it has Hunter Biden on the board.” And Hunter Biden is the son of Joe Biden, and he gets paid a substantial amount of money to be on the board of this company without any -- it appears, any experience in the oil or gas business.

 

Then, it appears President Trump—this is where the facts are still coming out—ordered a delay in the release of approximately $400 million to Ukraine in military aide and according to the testimony we’ve been getting in the last week or two, seemed perhaps to instruct -- perhaps, we’re still getting all the details -- instruct people in the State Department and Rudy Giuliani, who seems to be acting as an unpaid government official here, to suggest to the Ukrainians that no meeting between a new president and President Trump would occur until the Ukraine made a public announcement that it was conducting an investigation. At the same time, we’ve had accounts now from high-ranking government officials in the State Department and in the National Security Council that there was a lot of protest by John Bolton, Secretary of State Pompeo, and maybe others about what may or may not be called a quid pro quo.

 

However, when career officials in the State Department asked if there were quid pro quo and complained, the ambassador to NATO, at the time a political appointee, apparently told those officials that there was no quid pro quo. That’s where the facts are now. So let me turn to John and see what he thinks of these facts. What did we learn? What seems to be true? What’s not? Is this really a quid pro quo, and is there anything wrong with a quid pro quo?

 

John G. Malcolm:  So let me just make a couple of tweaks to the timeline I think you gave, which is I believe that the President -- so Congress had approved $391 million in military assistance to the Ukraine. And the President, I believe, told Mick Mulvaney, who relayed this to the Office of Management and Budget, “Don’t turn over these funds.” And he expressed some concern about corruption in Ukraine. Ukraine has a long history of corruption. And in fact, when Volodymyr Zelensky won, he ran on an anti-corruption campaign.

 

And then this conversation takes place between President Trump and President Zelensky. I believe it was actually on July 25. And the Ukrainians don’t know, and they don’t find out for some time afterwards that these funds have been withheld. And in the middle of the conversation, President Trump says, “Look. I want you to do me a favor.” And he makes reference to kind of two different investigator matters. One of them is the probe that’s being done by Bill Barr and John Durham into interference with the 2016 election. And the other he makes reference to Joe Biden and Hunter Biden. As John just said, Hunter Biden is on the board of Burisma Holdings, an energy company. There’s no reason to believe that Hunter Biden has any experience in the energy field, and they are paying him a minimum of $50,000 a month for board service.

 

The breakdown on those two things were that there was a rumor that the Ukrainians were involved in election interference in 2016 and that it was the Ukrainians, in fact, who may have hacked the DNC. There were even rumors that the server, which had never been turned over to the FBI, had been transported and was hiding somewhere in Ukraine. And there were rumors that the Ukrainians were interfering in the 2016 election, not to help Donald Trump but to help Hilary Clinton.

 

With respect to Burisma Holdings, this is just a fact. So Joe Biden has bragged about this on videotape that he went over to Kiev after the Obama administration had approved I think it was a billion dollars in loan guarantees to the Ukrainian government. And he said, “I’m wheels up on Air Force One or Air Force Two in six hours. You are not going to get that loan guarantee unless and until you fire your prosecutor general,” a guy named Viktor Shokin. And that happened. And he brags about this.

 

Viktor Shokin has said, although he’s changed his stories at various times, “that the reason that I was fired was because I was conducting an investigation of Burisma Holdings, and the founder of that company and Joe Biden didn’t want me investigating that company because it was going to harm Hunter Biden.” Joe Biden has said, “I didn’t know Hunter Biden was involved in this company. I was just doing this as an anti-corruption matter,” and that this is all terrible. So that is kind of what’s going on with those two investigations.

 

It’s also then known at some point afterwards Ukrainians found out that there was a hold placed on this military assistance. They raised objections to it. The President released the $391 million after being lobbied by, among others, Senator Ron Johnson of Wisconsin, Republican senator, and some of his military leaders saying the Ukrainians really need this in order to fend off the Russians and the Crimea. And so far as I know, no investigation was undertaken, nor was one promised, into either the 2016 election interference by the Ukrainians or Joe and Hunter Biden.

 

There are several officials who have been testifying behind closed doors, who are saying they thought this was nuts as a matter of policy. And they were very concerned that this was being done as a quid pro quo to help the President against a political opponent, Joe Biden, and others who have said, “Nope. That’s not what this was about at all.” And it’s hard to tell exactly what’s going on since it’s all taking place behind closed doors. And that will get us to process, which I guess we’ll get to next.

 

Prof. John C. Yoo:  Yes, it’s a good segue because there are things which are unusual about this process. And one question people are arguing about all over the country, particularly in the Beltway though, is whether these procedures are somewhat unconstitutional or whether they are within the House’s ambit, what procedures would be proper or not. So far, as John mentioned, all the details we really seem to be learning are from leaks because the questions are being conducted with the witnesses behind closed doors. They’re primarily being conducted by the House Intelligence Committee, chaired by Representative Adam Schiff, rather than the House Judiciary Committee, which has usually been the committee that conducts impeachment investigations.

 

Apparently, the White House has no representative involved, although members of the House Intelligence Committee from both sides of the aisle are allowed to participate. But another unusual thing is that the minority staff are not allowed to ask for any witnesses or to pursue any leads of their own. The staff are not organized in any bipartisan fashion. And most importantly, there have been no public hearings. So President Trump’s White House counsel, Pat Cipollone, has sent the letter accusing the House of conducting an unconstitutional process because it denies President Trump constitutional due process in the investigation.

 

And my take on this is twofold. One is I don’t think that the Constitution requires the House to run its investigation in any particular way. This comes out of the Nixon v. United States case at the Supreme Court, which is not President Nixon. This is Judge Nixon. And in that case, the Court refused to review a similar claim against the Senate by a judge who was impeached who said the Senate didn’t afford him with due process under the Constitution when it held its trial. The Court said, “This is a political question. We’re not going to review anything having to do with the impeachment because the Constitution says the Senate shall have the sole, quote/unquote, sole power to try impeachments.”

 

And it notes that the only other place the Constitution uses that language is with the House. The House has the sole power to impeach. So it would seem to me that the Supreme Court, if it’s going to follow its holding in Nixon, it’s going to also say there’s no constitutional due process standards which courts can enforce against the House when it conducts an impeachment proceeding.

 

But my second point on this is I don’t think that that means the House should be doing what it’s doing. I think the House is actually just, out of a matter of tradition and common sense and good practices, doing exactly the wrong thing right now. Part of it has to do with the Senate procedures, as well, for the trial. So if you that were around for the Clinton impeachment you may remember the Senators are treated something like a jury.

 

So the Senators sit there quietly, silently through the whole thing. They don’t make arguments. They aren’t allowed to question witnesses. They aren’t allowed to argue over the credibility of witnesses or the reliability of documentary evidence. Basically, it was more like speeches. The House elects a manager and sends them over. They give some speeches. The White House sends defense counsel over. They give some speeches, and that’s it.

 

 So to me, the only place where they’re really going to see witnesses who testify, where we’re going to see cross-examination, which the Supreme Court has said is the greatest guarantee for finding the truth in American courtrooms, the only place we’re going to see documents even entered into anything like evidence and read and examined and questions is going to be in the House. So seizing is incumbent on the House if it really is going to carry out this most important of it’s constitutional functions in a way that’s going to have credibility with the American people. The House has to have a much more open process. It has to have transparency, and it ought to bend over backwards to give the minority full rights to participate and to even give the White House representation in the whole procedure.

 

In this respect, the Democrats have been saying what the House is doing is like a prosecutor. They’re like a Grand Jury. They’re doing an indictment. When you do these indictments with a Grand Jury, you don’t let -- you don’t have proceedings out in the open. You don’t let witnesses hear what each other are saying so they can’t change their testimony. You don’t have defense counsels --

 

Micah Wallen: Oh, it looks like his number dropped off. Back over to you, but I’ll work on getting him back on the line here.

 

John G. Malcolm:  Okay.  That’s great. I don’t disagree with anything that John has said so far, but I want to pick up on this. So what’s going on now in the House of Representatives is totally unprecedented. So we’ve had three impeachment inquiries for presidents in our nation’s history: Andrew Johnson, Richard Nixon, Bill Clinton. All of those began with a vote by the whole House. It was a slight delay in the Nixon impeachment inquiry because there were really Senate hearings going on at the same time.

 

But all of them began with votes by the full House, and that isn’t what’s happened here at all. The Constitution says nothing about this. There are House rules, which they’re ignoring. And it says, as John said, that the House shall have the sole power of impeachment. And then it says the Senate shall have the sole power of trying impeachments.

 

This is being done because Nancy Pelosi does not want to put her members on the record at this point. A number of them are running -- will be running for re-election in states that President Trump won. And also, the House rules provide that once they have an impeachment -- vote for an impeachment inquiry, that under the House rules, the minority, the Republicans, are given certain rights to issue subpoenas, question their own witnesses. The President would have a right to have counsel present at these hearings. And Speaker Pelosi doesn’t want the Republicans or the President to have any of that stuff.

 

This is also being done in a bizarre fashion in the sense that one would normally expect that the House Judiciary Committee, which is chaired by Jerry Nadler, would be conducting this inquiry. And as John noted, it’s being conducted by Adam Schiff under the guise of the House Intelligence Committee. This is not an Intelligence investigation. But by doing this, one, I think there was a certain sense that Jerry Nadler wasn’t connecting with the public with the hearings that he was holding in the House Judiciary Committee. So maybe things would go a little bit better with Adam Schiff.

 

But, you know, another reason why I suspect they’re doing this is because the public hearings that they have had so far, the ones involving Bob Mueller, the ones involving Cory Lewandowski, from the Democrats perspective didn’t go so well. So by doing this all behind closed doors, it gives Congressman Schiff the opportunity to just sort of take witnesses out for a test drive, if you will, and to see who’s going to be a good witness and a bad witness. And then they can leak the stuff that they want leaked. And they can keep hidden the stuff that they want to keep hidden. And I think that the Democrats—and it’s a bit of a high stakes gamble—are banking on the fact that the vast majority of people don’t give a rip about process. They only care about results.

 

So you have all of these bizarre things going on, like, last week at the end of the week, you had Republicans in the House were storming the skiff where these hearings were taking place, which ended up cancelling that day’s proceedings. And Senate Republicans Lindsey Graham and Mitch McConnell have proposed a resolution condemning what the House is doing behind closed doors. They have the support of 50 out of the 53 Republican Senators for this resolution.

 

There’s other things going on. For instance, there was a ruling last week by the chief judge of the district court here in D.C., Beryl Howell, that said that the government is going to have to turn over to the House Democrats the redacted portions of the Mueller report and some of the underlying exhibits and testimony and has said that, de facto, the House is conducting an impeachment inquiry and that’s why it’s okay to turn this stuff over. I’m quite sure the Trump administration will appeal. And in this regard, they might actually get some consideration by the D.C. circuit because the House has not begun a formal impeachment inquiry because they haven’t taken this vote.

 

One thing I don’t fully understand is that the Senate could, of course, conduct its own hearings in public if it wanted to. People may remember North Carolina Senator Sam Ervin, “I’m just a country lawyer,” conducting the Senate hearings into Watergate. That’s where John Dean had his explosive testimony about a cancer on the presidency, and that’s where we found out about the Nixon tapes. So the Senate doesn’t have to sit on its hands until a referral is made over for the House. So the timing in the proceedings here -- the timing is totally up in the air, and the proceedings are completely unprecedented. Has John rejoined us?

 

Prof. John C. Yoo:  Yeah. Let’s go on to the substantive question. This all leads to questions -- suppose that the facts as they seem to come out in the press are true. Just put the facts in the light most favorable to the House Democrats. And suppose the process issue gets solved. The House has open hearings. They eventually vote on impeachment and decide to impeach. Then it goes over to the Senate. And the question, then, is everything we’ve seen an impeachable offense?

 

And again, I have two -- as you all know, the impeachment clause says the president or other high ranking Executive Branch officials can be removed for treason, bribery, or other high crimes and misdemeanors. I think, if you look at the Founding discussions about the impeachment clause, impeachment is a device that was borrowed from the British. The Founders are trying to balance two things. They were trying to provide a means to remove a president who had betrayed the national interest. At the same time, they did not want the president to be subject to the control of the House. They were very worried that giving the House the ability to remove the president would essentially -- as governors who were controlled by state legislatures in the period before the Constitution, it would allow the legislature to control the executive, and this was seen as one of the great sins of the revolutionary constitutions and one of the prime defects that the Founders were seeking to correct in the Constitution.

 

So they tried to balance this in a number of ways. I think one of them actually is the two-thirds requirement in the Senate because they knew that impeachment would be a political process. But they wanted to make it then even more difficult to remove a president. The other thing to take note of—and this is I think the language of the clause—it wasn’t designed to be used to remove a president just because a Congress and the president disagreed about policy issues. As several people have pointed out, the original draft of the impeachment clause had allowed for the removal of a president for maladministration. And that phrase was removed and replaced with other high crimes and misdemeanors.

 

So my read on it is that impeachment doesn’t have to be a crime. I don’t think you have to commit a violation of federal law in order to impeach. At the same time, not every violation of federal law and not every crime rises to the level of high crimes and misdemeanors. I think if you go and look at the historic materials, it was intended for serious cases where the president was betraying the national interest. So I think actually a good use of the impeachment clause was the attempt to impeach Andrew Johnson. You may remember he wasn’t impeached. He was acquitted by one vote. He came within one vote of being removed from office.

 

The other thing that underscores this to me is that impeachment is not supposed to be a criminal process. If you remember, the impeachment clause’s remedy extends only to removal from office and disqualification from holding future office. So that’s the standard to me, at least.

 

I think that what President Trump is accused of generally falls within the class of activities that could be a high crime and misdemeanor. But I don’t think the facts as we know them now rise to the level and bear it out. In fact, I do think that the Founders were worried about a president who might use his foreign affairs power for a national -- sorry, for regional or political self-interest. They had talked, for example, about impeachment being used in the case of Louis XIV bribing or paying off the British king not to send troops to the continent. They talked about using impeachment to remove a president who entered into a treaty, for example, that was just good for his personal or his state’s interest but not for the national interest. So I think a claim that a president had used his foreign affairs power to just benefit himself rather than the country is a viable claim for impeachment. But on this case, I don’t see it in terms of the facts that this rises enough yet to level of removing a president from office.

 

And then the last thing I’ll mention is I also think that the Founders expected that election would be the primary means for the people to render judgement on the president. I think they would have thought impeachment is not really necessary or useful when we’re coming within a year of an election. Yes, the House can get all the facts out. The Senate can get all the facts out. But if it’s really a case where a president ought to be removed, then the American people have that opportunity in November and that we don’t need to go through the wrenching process of impeachment and removal. John?

 

John G. Malcolm:  Yeah. So I agree with all of that. Impeachment is a very sober affair. In addition to the fact that it’s relatively easy to do in that you only need a majority of the House to file articles of impeachment, you do need a supermajority of two-thirds, so 67 Senators, to actual convict and remove somebody from office. It’s particularly serious business for the president in that it’s the only involvement of the judiciary applies to the president, which it says that if the president is going to be tried in the well of the Senate that the Chief Justice has to preside over that trial.

 

John’s correct. At one point they considered having maladministration of office in place as an impeachable offense. That was removed. It’s limited to treason, bribery, other high crimes and misdemeanors. Misdemeanors was understood at the time to mean a gross abuse of office. You would also think that -- I think it’s ejusdem generis, which is things in a list that when there’s something unclear at the end it’s supposed to refer back and be of a kind with the other things in the list. So treason, bribery, other high crimes and misdemeanors; high crimes and misdemeanors must be of an ilk with treason and bribery, which are gross offenses against the nation that require immediate removal from office because of the danger that that individual imposes. You can’t wait until the next election.

 

We don’t have a parliamentary system, so we don’t have no confidence votes. So you go to Europe. If you don’t like a person or you don’t like their policies anymore, you can have a no confidence vote and immediately remove them. You know, we don’t have that here. And what’s more, impeachment just treated differently in another way in that the president has plenary pardon power, except for the Constitution makes clear that the president cannot pardon somebody who is facing impeachment. So that was meant to sort of wall off this process from excessive meddling but not make it easy to do.

 

John makes the very correct and cogent point that, gee, we have an election coming up, so why aren’t we waiting for that process to take place? And my answer to that is -- why are the Democrats doing this -- is that they probably have two reasons, one, to go on offense and the other to be on defense. So they can go on offense. I think they have to realize that it is highly unlikely that they are going to get 20 Republican Senators to cross over to support this. So you’ve got 45 Democratic Senators, two Independents. Assuming they all go against the President, you still need 20 Republicans to cross over. And certainly on the basis of the facts as we’ve seen them, I don’t think they’re anywhere near that.

 

As I said, 50 out of 53 are supporting a resolution to condemn the method under which the House is doing this. So at the moment, with three exceptions, they appear to be standing relatively firmly behind the President. So why are they doing this?

 

So one, I think they’re going to go on offense to try to gin up their base and convince those people who were undecided that this is a really bad person who, if you can’t remove him from office via the impeachment and removal process, you ought to not reelect him. And then I think that there is a defensive purpose for this, which is the Democrats know that in very short order we are going to get a report from the Department of Justice’s Inspector General, Michael Horowitz, about potential abuses of the FISA process in the beginnings of the investigation against the Trump campaign for alleged collusion with the Russians.

 

And they also know that the Bill Barr/John Durham probe, which has just now been converted into an active criminal investigation, that they’re going to be reports and quite possibly charges that come out of that. And this is a bit of an attempt, in my opinion, to take the anticipated sting of those actions out. I think it’s quite strange, in fact, that the Democrats are already blending together conversations with foreign leaders about request for assistance with the Durham/Barr probe.

 

They’re blending that with requests for assistance for Hunter Biden and Joe Biden, the very same people who were criticizing the President for calling the Mueller probe a witch hunt and claimed that by denigrating the people involved that they were really trying to obstruct that investigation. They’re now doing exactly the same things about the Bill Barr/John Durham probe, calling it a witch hunt and saying that Bill Barr is the President’s lapdog, and this is denigration of the justice system. So I think, in part, they’re anticipating bad stuff that may be coming their way and trying to tie it all together with other perfidies that they believe the President has committed.

 

Prof. John C. Yoo:  I just wanted to, before we turn it over to Q&A, raise one broader question that worries me that I think John has briefly alluded to, which is we all should ask -- and this is another reason why I think going to impeachment could be far more damaging than just waiting until the election is the effect it will have on presidential power. Generally, as John mentioned, the key thing we’re talking about here is not just the president’s power of foreign affairs but two thing. The President is allowed to discuss things in confidence with foreign leaders, which I think it was just the very core of the foreign affairs power altogether.

 

And then, also, as we’re going to start seeing when the fights start in, I think, the next few days, if not weeks, the ability of a president to discuss and formulate policy with his closest aids without everyone being afraid that Congress or prosecutors can have access to that -- I think we will have far less candid and effective decision making if that’s the case. So another thing we ought to think about is whether going through impeachment could have effective long-term damage on the office of the presidency, put aside whether Trump’s in the office or not, that could really harm the ability of the institution to grapple with these really difficult problems in the world going forward.

 

John G. Malcolm:  Yeah. I absolutely agree with that, and I’m sure that President Zelensky needed the disclosure of his conversation with President Trump like he needed a hole in the head.

 

Micah Wallen:  We will now proceed to our first question.

 

Caller 1:  A couple of things, first the most recent statements you both agreed on that the President will be unable to get good advice, I’d love for you to come up with some kind of hypothetical where somebody would give advice that they’d be embarrassed of or that would be unlawful, and it would be a good thing for the President to be able to get good advice. But mostly, what I wanted to know was whether or not -- I mean, we’ve been talking about violation of norms, and what we’ve seen in the Senate is Merrick Garland being held up, abolishing the filibuster for Supreme Court, a lot of judges being seated that, having not qualified recommendation by the ABA who are literally activists in their previous careers and had no trial experience.

 

I wonder if there’s a silver lining in this in that, from a normative democratic standpoint, putting senators on the record for standing with this president who has separated children from families—and, god, the list is endless of things that have kept his approval rating hovering just above 40 percent for the duration of his term—I wonder if their unflinching loyalty is being tested by the impeachment vote and if that’s a desirable thing in a democracy.

 

John G. Malcolm:  That’s an awful lot to chew on. I will begin by pointing out just a few things. One is a factual inaccuracy that you had, which is that the American Bar Association, which is hardly a bastion of conservative legal thought, has rated Trump nominees at least as high, if not slightly higher -- but they are very comparable. I think it is slightly higher -- than they rated Obama nominees. These are all highly qualified men and women, so I disagree with you completely in terms of your characterization of their skills.

 

And if you’re looking for activist prospective nominees, you need look no further than the list of 32 people who were just put out by demand justice. There are only four sitting judges on that list. All the other 28 are complete activists. So seemingly, the four judges, all of whom are Obama judges, that even the Obama appointed judges would be too radical -- would be not radical enough, I should say, for the Democratic base.

 

I won’t take on your points about immigration. And look, a president, even whether he has good ideas, bad ideas, or is engaging in conduct that is either perfectly legitimate or of questionable legitimacy has to rely upon the confidential communications of the people with whom he is dealing. Similarly, if he is dealing with foreign affairs and with potential threats to our nation, he needs to be able to rely on the complete candor of the people in the intelligence community.

 

And anything that is going to put a blockade, if you will, between a president and those who would provide him that information because they are afraid that, in some way, the communications that they give to him will be made public is a very, very bad thing, both for the country and in terms of the quality of presidential decision making.

 

Prof. John C. Yoo:  I’d like to take two points. I think they’re both interesting issues raised by the question. One is this question of isn’t it a good idea to have an impeachment trial so you get all the senators on the record to judge whether -- so that we know whether they support the President or not support his policies or not. So constitutionally, I don’t think that’s obviously the purpose of the impeachment clause.

 

And in a broader perspective, that’s kind of approaching our system like a parliamentary democracy where the prime minister’s ability to succeed really is dependent on how the legislature feels about him from day to day. All we have to do is look over the Atlantic Ocean at what’s going on in England with Boris Johnson unable to keep the support of the majority of Parliament. And I think the Founders really didn’t want our system to work that way, that a president could act in ways that were in contradiction with the wishes of the House or the Senate. That’s why they had them elected at different times on different cycles and different means. So I don’t think we should use impeachment as a sort of jerry-rigged system to come up with a kind of parliamentary democracy.

 

And also, you would think the impeachment question, when the senators come to vote -- they’re not going to be or they shouldn’t be voting on their general agreement with Trump’s policies, whether they agree with him on immigration or not. They have plenty of opportunity to do that when funding bills come up, for example, or when they try to override President Trump’s views on whether to transfer money from military accounts to building a wall. Or if they really cared to take a stand, they could try to pass legislation overruling what President Trump is doing.

 

When it comes to the trial on impeachment, it shouldn’t be -- the impeachment vote should not be a general vote on whether President Trump is popular or whether they agree with him. It is a trial, and they have to vote, I think, on the alleged -- on the charges that have been brought forward by the House.

 

I think on the broader question -- so there were two questions asked. This first one was is there some kind of hypothetical where we would want to protect discussions, conversations between the President and his aids, even when the aids say something that would be politically embarrassing or maybe even be illegal? Well, I think that’s what’s going on here.

 

I think we do want to have this kind of discussion that they’re having right now -- that they had right then. And you had people say John Bolton’s saying, “Oh, this is outrageous. Giuliani’s dropping a hand grenade on all of us. It’s going to go off.” You have other people, it seems, who are supporting the idea that you could withhold Ukrainian aid if there were more investigations conducted into Burisma or corruption was being fought.

 

I’m glad that there was this kind of full-throated debate and discussion inside the White House and amongst the agencies. What I worry about is, if there were no executive privilege, people would just stop having those full-throated discussions. What we do want is for all those ideas to be candidly debated and presented to the President so he can make the decision, or she can make a decision. What I worry about is that, if all this comes out into the open unnecessarily -- and by the way, it’s the President who’s responsible.

 

So the President is the one who should bear the ultimate responsibility for the decision. But we want him to get all that advice. If you strip that confidentiality away, then you’re going to have -- I think which would be typical is you’re going to have people just sort of stage managing their role in the cabinet or in the White House and not really presenting the President with the full scope of options.

 

Micah Wallen:  We’ll now move to our next question.

 

Rob Henneke:  John, Professor Yoo, hi. This is Rob Henneke with the Texas Public Policy Foundation. Thank you guys for an interesting discussion here. I’ve got a two-part question that’s actually a question, if you’ll indulge me. Professor Yoo, you mentioned, yes, the actual impeachment process, the senators in the trial sit there. They can’t talk, and this is all set forth in the rules of the Senate. But John Malcolm, you made reference to what I found is Rule 11 in the Senate rules for impeachment that allow for a committee to be appointed for the purpose of collecting information and taking witnesses and testimony. And as I understand it, they actually deliver the record to the Senate, which is what is before the Senate during the trial.

 

So you have 44 senators sign on with Senator Graham on his objection to the way that the House is conducting itself. What do both of you think, or why not, or at least discuss why the Senate couldn’t just start its own process now and appoint a Rule 11 committee that, you know, they could subpoena the whistleblower to testify? They can start interviewing the same witnesses that the House is but have them testify out in the open. They could expand the scope and look at the alleged coordination. You know, the whistleblower met with Schiff’s staff before the complaint was published and could inquire into that. But basically, what do you think about the Senate executing under its current rules to go ahead and have a contrasting procedural process as opposed to the House?

 

My second question, kind of related to that, but, Professor Yoo, as you referenced, the Nixon v. U.S. case affirmed that the Senate is the master of its own proceedings. Do you see any reason -- or I’d love to get your thoughts about the Senate granting the Executive Branch, the administration, with discovery rights and privileges to be able to conduct its own responsive investigation and to have an opportunity to collect evidence, collect witnesses, and so forth as part of this process in order to obtain that information to put it in front of the Senate should this get to that point?

 

Prof. John C. Yoo:  So for what it’s worth, I wrote a piece a few weeks ago calling on the Senate to change its roles to allow for a full trial in the actual Senate rather than a committee or, what seems to be the practice, having no real trial at all because, I think, it is important for all the reasons that you just mentioned to allow presentation of alternate theories, bring more witnesses forward, and really put it forward for the American people to see. So I would prefer that the trial be more open. In fact, that’s what I said. The more closed off the Senate trial is the consequence is that it makes the House more important.

 

So conversely, I think the more the House process is defective, it seems to me the more grounds Senator McConnell and Senator Graham in the majority have to just dismiss the indictment out of hand and basically reject it. I don’t know what the White House’s strategy on this is, but one consequence -- unintended consequence it seems to me the House pushing so quickly and, I think, so one-sidedly for indictment is it makes it very easy for the Republicans in the Senate to just say, “Well, this whole thing was a sham, and we’re not going to really spend much time on holding a trial. In fact, maybe we’ll just vote.” Although, the rules don’t really permit this. I don’t see why they couldn’t change it. “We’re just going to vote to just sort of have a 12(b)(6) kind of motion, and we’re just going to dismiss the case without even having any proceedings because, on the face of the pleadings and the way they were generated, there’s no case here.” I think the House is almost kicking the ball over to the Senate to allow it to do that by having such a defective process.

 

In terms of why the Senate isn’t going to put together its own committee, I think there’s a legal and a political reason. The legal reason is I read that Senator McConnell said that they will just go right to trail as soon as the House sends the indictment over. So I just assume that the House Senate majority leader has chosen not to take advantage of any provision in the rules to create the committee -- this is discussed in the Nixon case -- to create a commit to conduct its own investigation.

 

And then they could see the political reason for it, too. I think the Senate -- it’s interesting. The reason I think the Senate has never changed these rules -- they could have changed them during the Nixon and certainly for the Clinton trials. I think the reason the senators like these rules is it sort of devests them of any responsibility. All the work and political controversy is going to be generated by the House.

 

This is an unbelievable luxury for them. They don’t have to say anything. They don’t have to make any arguments. They just sit there and listen, and then they vote at the end. The current system I can see is good for the senators because it relieves them of political responsibility for everything other than just their final vote. So I don’t see the political incentive, actually, for this. In a weird way, I don’t think the Republican senators mind that the House is doing this so defectively. So they don’t have a political incentive to create a better corrected process of the kind that you described.

 

John G. Malcolm:  So let me just add a couple of thoughts. First of all, thank you for the question, Rob. I think, by the way, that, again, McConnell and Graham are up to 50 Senators total who are supporting that resolution. So it’s up from 44. I don’t disagree with John other than to say that there could conceivably be Senate hearings, at least on the corelative issues.

 

So as soon as the Horowitz report comes out -- so all stuff—and whatever Durham is doing, assuming it comes down in a timely manner—that’s all related to the 2016 election probe. So it’s a sidelight from what the House is doing, but it’s all tied up in the presidential quest for an investigation into the 2016 election probe, which is now, having made this request to President Zelensky, has gotten him into some hot water. I think they will hold hearings on that. And part of the reason I think why the Senate is not holding hearings -- it could be as John said because the House is doing this in such a heavy-handed manner that they’re preferring to sort of sit aside and watch the Democrats -- I don’t know if they’re self-destructing but damaging themselves because of the process that they’re using.

 

And also, it’s a question of time. I mean, this has all happened incredibly quickly. And you’re hearing that the House wants to take a vote on articles of impeachment. You were originally hearing before Thanksgiving. Now, it might slide to before Christmas, but that’s less than two months away. So I think, in part, it is the speed with which this is taking place that the Senate is sort of stepping back and saying, “All right. Well, let’s see what happens here.”

 

You’re also now hearing the Democrats starting to throttle back a little bit because they’re also hearing complaints about the process. And you’re starting to hear them so, “Oh, we’re going to be having public hearings very soon.” So I think, at the moment, the Senate is sitting back and sort of seeing what way this plays out. But it’s not outside the realm of the possible that they may have their own set of hearings.

 

Micah Wallen:  We’ll now move to our next caller.

 

David Burge:  Yes, this is David Burge in Atlanta, a former law clerk with Mr. Malcolm. Good to hear you always. This goes to whether what is alleged is impeachable at all. And that turns on the fact that this all happened in the foreign policy realm, not in the domestic realm. I don’t have any doubt that if these sort of conversations about making investigations of opponent’s sons was made to someone in the Justice Department or a U.S. Attorney -- that would be a totally different conversation.

 

But since it was made to a foreign leader in the foreign policy context, that’s an area where we expect to see sharp elbows and even some ruthlessness. There’s probably a lot of conversations that we just don’t want to hear about. And perhaps the bad thing was this one was publicized. But comment on the fact that this was an ask to a foreign official, actually a foreign sovereign, rather than to someone domestically and how that might change whether this is impeachable or not.

 

John G. Malcolm:   First of all, David, it’s great to hear your voice. That’s a very interesting question. So you’re getting some people, like Alan Dershowitz who has said that you literally have to have a criminal offense before you can impeach somebody -- others like David Rivkin and Elizabeth Foley who have said, “No, but you need somebody who’s acting in an extra-constitutional manner, either by a president seizing constitutional authority he doesn’t have or adamantly refusing to carry out a constitutional duty.”

 

Elizabeth Foley and David Rivkin has a really great op ed in this weekend’s Wall Street Journal in which they point out, as you sort of just raised, that presidents in the past have used foreign aid as a leverage point to try to get foreign leaders to do things that advanced U.S. policies. They use examples by Barack Obama, who threatened to withhold military and economic assistance from Egypt unless they cooperated with U.S. counterterrorism goals. Obama threatened to withhold foreign aid from African countries unless they changed their policies with respect to gay rights. Then they site examples of Lyndon Johnson doing the same thing, using foreign aid as a strong arm to get others to cooperate with our efforts in Vietnam. So I think that presidents are given the primary role under the Constitution of conducting foreign power, and they’re given a pretty broad swath with respect to doing that.

 

Now, I do think that if somebody believed that this was not being in any way, shape, or form for the interest of the nation and purely was for self-advancement that that might cause a problem. And it’s that kind of debate that is going on as to whether the President was doing this because he really thinks that Ukraine was a corrupt government that needed to prove that it wasn’t corrupt by cooperating with various ongoing investigations, including instances of looking at how Joe Biden may have corrupted the process himself when he was serving as vice president in the Obama administration. So it’s that kind of debate that’s going on. But yes, the fact that this was a conversation with a foreign leader, it involved foreign aid, does change the calculus somewhat.

 

Prof. John C. Yoo:  I don’t disagree with that, but I would push it farther. I guess I don’t think that the fact that, as you suggested in the question, that it involves foreign affairs changes a calculus in a sense that you can’t be impeached. In fact, the thing that struck me when looking at the Framer’s debates about impeachment is that they usually used as examples things involving foreign policy as possible impeachment offenses. So again, I mentioned the Louis XIV paying Charles I not to get involved in his wars on the continent. Or they actually mentioned this suggested treaty called the Jay-Gardoqui Treaty that had been proposed during the revolutionary period that the Article -- the Continental Congress had rejected is actually potentially impeachable. Though, I thought that was pushing it too far.

 

So it’s not that foreign affairs is somehow exempt from the reach of the impeachment clause. In fact, they kind of have that as the thing they were most worried about. I agree with John in this respect, and I would put his point maybe differently, which is, when foreign affairs are involved, it’s difficult to disentangle when what presidents are doing are for the national interest perhaps from their own personal interest. So I think the thing that’s different about this case and the examples that Rivkin and Foley give, or that other people have been giving, is that the examples that Rivkin and Foley give, and other people give, are areas where of course it’s okay to use foreign aid to pressure other countries to do what we want. I don’t think anyone’s disputing that, or they shouldn’t be. The question more is what if use of foreign aid to pressure countries to do something in the president’s personal interests as opposed to the interest of the nation.

 

So here’s an example, a hypothetical, that I think we would all agree would be out of bounds -- would be suppose President Trump cut off countries from foreign aid until they bought Trump properties or did all their business at Trump hotels or made actual monetary contributions to the Trump’s reelection campaign. I think everyone would agree that’s an abuse of power. That would be impeachable.

 

The problem is that, other than some obvious and clear benefit to the President individually, things that benefit the nation benefit the individual who’s president. The better the country does the better Trump does as far as reelection. So that’s what makes this very difficult. That’s why you could say, look -- some people would say, look, he’s not really after Joe Biden. Trump has a legitimate interest in making sure there’s less corruption in countries where we’re giving hundreds of millions of dollars of foreign aid. That’s undoubtedly correct.

 

And I also think the President is entitled to say, “I could hold up your aid or cut it off or whatever in order to get Ukraine to change its policies in line with what the United States wants.” It’s hard to disentangle that with things which happen to be a benefit to Trump personally. Yeah. So I think the better answer is let the American people decide at the election because it’s not such an obvious and clear case of impeachment of the kinds we’re thinking about.

 

Micah Wallen:  We’ll now move to our next question.

 

Jim Hunter:  Hi, my name is Jim Hunter from Los Angeles. And I’m wondering why isn’t it that the Senate can’t do more now as opposed to simply send a letter saying that they object to the procedure? I don’t know why either the McConnell individually or the 50 Senators who sent the letter cannot say, definitively, that, “Unless you allow a vote of the House to authorize an inquiry before you move forward and unless you give the minority the right to subpoena,” and whatever other procedural steps that they want to demand, “we’re going to find that any impeachment verdict you grant is essentially poisoned. And we will immediately refuse to go to trial or acquit the President.”

 

And if the Senate did that, I think it would, in fact, effectively force the House to do what the Senate decree was going to be required to say minimum procedural guarantee because I don’t think they could take the chance with their base of going forward with a process that the Senate had made clear since it has the ultimate authority on actually removing the President -- if they say we will not remove the President unless you, one, have a full vote in advance, as has been precedent, and if you allow the minority to have subpoena power and if you allow the President to attend it.  They can put whatever requirements they want.

 

And as long as they stay categorically in whatever form they want to at this point, then I think they can force the House to accede to their demands. And I think it’s appropriate rather than requiring the country to go through an impeachment process in the House if it’s going to ultimately be just summarily voted down by the Senate because it didn’t comply with what the Senate requires. And the Senate is the ultimate pollical issue.

 

Prof. John C. Yoo:  I’m sorry to cut you off. I think we’re almost at the end of the hour. So let me answer the question because I quite agree with you. It seems to me that, constitutionally, I think everything you said the Senate could do. The Senate could just say, “Look, we’re not even going to have a trial unless we’re confident that the House pursued a fair process in coming up with the indictment.”

 

The problem is I looked at the Senate rules for impeachment trials, and there isn’t any kind of mechanism for doing that. It’s really interesting. It talks about that the Senate will turn to the trial basically as the next item of business if the House sends something over. It talks about the procedures and so on. It doesn’t actually -- and it talks about having the final vote. It doesn’t talk about what, as lawyers, we would think of as a motion to dismiss, 12(b)(6) or even a summary judgement motion. It requires the Senate to have the trail. Now, it doesn’t say how long the trial has to go on for.

 

So I think, and again I penned a little piece saying this, I think that the Senate could changed its rules. If there are 51 senators who agree that the House ought to hold the trial in a certain way and have signed on to the McConnell -- I’m sorry, the Graham resolution that John Malcolm was referring to, then you have basically enough senators to change the Senate rules. Usually you have to change your rules by supermajority. But as we know from the rule change getting rid of filibusters, in the end, you only need a majority. So it seems to me the Senate could do that. They could change the rules right now.

 

I think it actually -- if they’re going to do it, they’ve got to do it soon because you want to do it before it looks like it’s just motivated by partisanship. So the way to do that, I agree, is have the Senate change the Senate rules and provide for a process that would allow for dismissal, essentially, of the complaint from the House right away without having a trial, if people believe that even, agreeing with the facts, there’s no impeachable offense or you believe that the House conducted the investigation in an unfair manner.

 

John G. Malcolm:  So I agree with John that the Senate could do that. And now I’ll offer why I think they are not doing that. I think they are not doing that because they feel very comfortable saying that the process that the House Democrats are using is a sham. But they are not comfortable getting out too far in front of the facts as they develop. And if you were to say, “If you don’t follow this process, we’re going to acquit no matter what those facts are,” you are blending the two.

 

And I think that they may be a little nervous, perhaps with some justification, about what facts might still come out. And if they take that move and the facts turn against the President in unanticipated ways, I think they’re afraid that they may pay a price for having laid that stake in the ground too early. That’s a guess on my part, but that’s my guess.

 

Micah Wallen:  And that concludes our time for this afternoon. On behalf of The Federalist Society, I’d like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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