The President's Impeachment

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Practice Groups, was recorded on Friday, December 20, 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 on the latest of the events in the presidential impeachment process, part of an ongoing series we have covering this impeachment process with FedSoc celebrities Professor John Yoo and John Malcolm. 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 the aforementioned speakers, John Malcolm, who is Vice President for the Institute for Constitutional Government, Director of the Ed Meese Center for Legal & Judicial Studies, and Senior Legal Fellow at The Heritage Foundation. We also have Professor John Yoo who’s an 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 open up the floor for audience Q&A. Thank you for sharing with us today. Professor, the floor is yours.

 

Prof. John C. Yoo:  Thank you, Micah, and thank you, everyone, for listening in. And I thought what we’d do today as there’re so many issues, as we’re coming to the close of the legislative session and halfway through the impeachment saga, I thought we’d talk about a few of them. I’ll introduce the issues, throw it over to John Malcolm, and then I’ll make a few comments. And then hopefully we’ll be able to open up for questions and discussions about -- discussion about halfway through the hour.

 

So I see five issues: one, the House judiciary committee report on impeachment; second, the impeachment vote itself; third, the developments just in the last day of the House withholding, actually, articles of impeachment from the Senate; thoughts about what the Senate trial might look like; and then Trump’s -- what I’m calling Trump’s crazy letter that he sent over to the Speaker of the House. So to start on the first question, the House judiciary committee report, which voted -- the judiciary committee voted on party lines to approve the articles, send them to the House floor, what do you think, John, about -- so the interesting thing, I think, was the committee’s discussion of the standards for impeachment.

 

And there, the committee made the case that no crime was required. It didn’t allege treason and bribery. It made the case that a president could be impeached for abuse of power. So John, what do you think about that?

 

John G. Malcolm:  Well, it’s a dangerous thing to do. Although, depending on how grossly abusive it is, it might be a permissible thing to do. So the original language in the Constitution talked about treason and bribery. And it had other things in there that were all rejected. George Mason thought that it didn’t go far enough. He suggested having treason, bribery, and maladministration. That was objected to by James Madison, among others, and it was -- and maladministration was taken out.

 

It was viewed that that would be too loose a standard and that, in essence, the President would be under the thumb of the Senate. And we would end up having a de facto parliamentary system in which you could essentially have a no confidence vote, impeachment be the equivalence of a no confidence vote. And you could just throw somebody out because you didn’t like their policies or didn’t like the person, the personality of the president.

 

And what was substituted, of course, was “other high crimes and misdemeanors.” So using the word “other” after treason and bribery certainly is suggestive under standard rules of construction that it has to be some behavior that is essentially akin to something that serious. There was a fair amount of British history suggesting that other high crimes and misdemeanors could constitute gross abuses of office, largely for personal benefit. And that is the flag under which they are flying.

 

Now it is a little bit dangerous going down this road because obviously, if you allege criminal conduct such as was alleged against Richard Nixon and Bill Clinton, then you’re in fairly safe territory whether it results in removal or not. That’s clearly a high crime. The more you get away from that, the more political it appears to be.

 

The example for that would probably be the Andrew Johnson impeachment where, among other things, he was accused of violating the Tenure of Office Act, which, while he did, it certainly wasn’t a crime of any kind. And ultimately, the Senate felt that it was too political. And even thought the President was astonishingly unpopular at the time, they stepped away from the brink, and he survived being convicted and removed by one vote.

 

And so this is somewhere in between. So after a whole lot of talk about bribery and quid pro quo and extortion, I think they came away with the view that they didn’t have the goods on that. And they’re going with this gross abuse of office concept, which is dicier.

 

Prof. John C. Yoo:  Well, one good point, I think, that’s made by some critics is that -- I agree with you, John, that impeachment, the phrase “other high crimes and misdemeanors” encompasses more than just crimes. But the problem is that the standard you’re pointing out is amorphous. And I think the committee report and I think the House, generally -- the House Democrats don’t do a good job responding to concerns like yours and others who say, “Well, what is the abuse of power?”

 

John G. Malcolm:  I think that’s right. I think what they’re trying to say is that the entire diplomatic core, the careerists, believed that Zelensky was a true reformer and believed that we should be giving the Ukrainians everything by way of military aid to fight the Russian menace in the Crimea and that the only reason why Trump was not doing this was because he was going to hold that aid over their head as leverage just to get dirt on his main political rival, which is why their mantra is he accepted interference in the 2016 election. And he has invited foreign interference into the 2020 election.

 

I think that there are other facts out there that cut the other way, that say that the President was right to have a somewhat more jaundiced view of Ukraine, both in terms of their own interference in our 2016 election and whether or not they were serious about fighting corruption. And he invited their assistance in terms of looking into corruption involving the former Vice President of the United States, which is certainly also tied up to corruption going on in the Ukraine. And that while he may or may not have used bad political judgement in doing so, that that certainly wasn’t purely for personal gain.

 

Prof. John C. Yoo:  Yeah. Another area, I think, that the House judiciary committee and then the House Democrats did a very poor job of is showing how, in this case, if the crimes and misdemeanors -- they’re focused on the word “other.” I focused on the word “high,” that it was of a similar level, on a par with treason and bribery. In that respect, I think you have to show -- in contrast I think to the Clinton impeachment where, I think President Clinton made a good argument. Yes, he might have -- he did commit perjury, but it wasn’t upon the country. It wasn’t something like treason or bribery.

 

Here, I think that the House Democrats, many of whom I remember voting against Clinton’s impeachment, here, I think they found the same problem. I think that have to -- which I don’t think they did -- that what Trump did actually did harm the country’s security, that it was actually not just a bad idea, bad policy, irresponsible, but actually harmful on a level with the rules that the Framers gave during the draft Constitution. And those gave examples of, again, Louis XIV bribing Charles II not to go to war or the idea of other countries coercing, bribing presidents to enter into treaties that are harmful to the nation and benefit him or his political party.

 

I think the Democrats didn’t do a good job of that because they just want to create this abstract idea that any abuse of power could be impeachable. And I think that’s a problem because we have had lots of presidents who have abused their powers in various ways. You could say President Obama did by not enforcing the immigration laws in DACA. He wasn’t impeached. Presidential misconduct I think has to arise to a certain seriousness to be worth impeachment.

 

John G. Malcolm:  I think that’s right. The argument that you would hear to the contrary, it was not only against our national security interest to allow Ukraine to suffer at the hands of the Russians, but what the real threat was was inviting foreign interference into our elections. But all the points you made are exactly correct. And as amorphous as Article I, the abuse of power article, is Article II, which is obstruction of Congress is even worse in that regard. If we are going to impeach presidents who assert executive privilege in response to a congressional subpoena, every president will within probably the first year of being in office have committed an impeachable offense.

 

Prof. John C. Yoo:  Yeah. I agree with you, John. We should not overlook the second article. The second article claims that refusal to hand over documents, refusal to make witnesses available is itself an impeachable offense. I quite agree. It can’t be the case that all of the President’s claims of executive privilege are unconstitutional here. It can’t be the case that an impeachment trail is, as far as it allows Congress to win any times it wants documents from the Executive Branch. Of course, if you’re Congress and you were [inaudible 00:10:50], you would just always start impeachment proceedings and then demand anything you want under the guise of your proceedings there. Why go to normal oversight?

 

John G. Malcolm:  Yeah. In fact, that’s tied up --

 

Prof. John C. Yoo:  -- The next point -- go ahead. I’m sorry.

 

John G. Malcolm:  No, no. I’m sorry. I didn’t mean to cut you off.

 

Prof. John C. Yoo:  I think you’re just naturally going to the next point, which I think about the vote on impeachment because there were different votes on each of the two --

 

John G. Malcolm:  -- Well, we can. Although, I do want to stick with --

 

Prof. John C. Yoo:  -- Were there any surprises there?

 

John G. Malcolm:  I do want to -- I’ll get to that in a second. I do want to stick a little bit with the second article first, which is the one thing the President is saying is, “Look. My lawyers weren’t able to participate in the House judiciary proceedings, in the House intelligence committee.” And the Democrats are saying, “Oh, no. You declined. Your attorneys declined to participate.”

 

This is tied up in that because, in the House judiciary committee’s rules, they asserted a provision that, if the President continued to refuse to make members of his administration available or to produce documents, that the House judiciary chairman could, in his sole discretion, cut off the President from participating in any way. And the President looked at that and said, “That is just a charade.”

 

And the other thing I think is certainly worth noting is that the Holder Justice Department, in July of 2014, issued an opinion from the Office of Legal Counsel, your old digs, in which they said the following. They said the Executive Branch’s longstanding position reaffirmed by numerous administrations of both political parties is that the President’s immediate advisors are absolutely immune from congressional testimonial process. This immunity is rooted in constitutional separation of powers and the immunity of the President himself from congressional compulsion to testify.

 

And that’s exactly the issue that is now being litigated. And the Democrats don’t like the fact that the President is pursuing that line of privilege. And instead, they’re saying, “You know, look, we’re going to bypass the courts and just impeach you for it.” It strikes me as being very unfair.

 

You want to talk about the vote now. I wasn’t at all surprised in terms of the outcome. That has been as predictable as anything since the very beginning of this process. But I do think it’s worth pointing out. Jerry Nadler, the House judiciary committee chair at the time of the Clinton impeachment, he said the following. He said, “There must never be a narrowly voted impeachment or an impeachment substantially supported by one of our major political parties and largely opposed by the other. Such an impeachment would lack legitimacy, would produce divisiveness and bitterness in our politics for years to come, and will call into question the very legitimacy of our political institutions.”

 

So what happened here? Not a single Republican voted in favor of either article of impeachment. There were two Democrats -- at least, he was a Democrat at the time, Jeff Van Drew in New Jersey. He is now officially, as of I think today, become a Republican. He voted against both articles of impeachment. Collin Peterson in Minnesota voted against both articles of impeachment. Jared Golden of Maine voted in favor of the first article of impeachment but not the second one.

 

And interestingly, Tulsi Gabbard, the Congresswoman from Hawaii who’s running for President, she essentially abstained. She voted present for both articles. And then she later said that she thinks the President was guilty of wrongdoing, but she thinks that the process has been very unfair and incredibly partisan. And she doesn’t think it’s legitimate to vote to impeach under those circumstances. She would prefer to censure the President.

 

This is as one-sided as it gets. And I don’t know whether it will be exclusively party line vote, if and when this ever gets to the Senate. I expect it won’t be quite a straight party line vote, but it’ll be darn close.

 

Prof. John C. Yoo:  I agree with you. There were no surprises. I would have expected maybe seeing a few more, maybe from both parties going the other way. People forget that’s what actually happened in the Clinton impeachment. In fact, there were, I think, four articles of impeachment proposed by the House judiciary committee. And only two of them were approved by the House as a whole.

 

Let’s go to your larger point, which is you’re going to start, I think, if you haven’t already, hearing Democrats complaining of the high bar for convictions, the two-thirds requirement in the Senate for conviction, how unfair it is and how such a small percent of the population that represents -- it’s a small percent of the population that a blocking minority represents. I think when I calculated, I came up with something like 11 or 12 percent of the population could be represented by the one-third smallest states in the country. But it goes to partisanship, John, because Alexander Hamilton and the other Framers explained clearly that the reason they put that two-thirds in there was to make sure that impeachment could not be just the product of partisanship. It would lead to all the problems you described.

 

You want it to be a deterrent to having one party use the House as a way to control the President because the Framer’s innovation was creating an independent Executive. We’re so use to it now, but that really was a brand-new thing in the Constitution when the Framers went in. And they really worried that Congress would become -- could see impeachment becoming a tool that would be used to create a more parliamentary system where the President sees himself really as just the agent of the majority. So that’s sometimes been the case in our history that some presidents acted, I think, to bad effect, actually.

 

John G. Malcolm:  I think in that regard it’s a lot like the electoral college. The Framers wanted to make sure that when we were electing a president, and certainly before we removed one in between elections, that there was a very broad consensus across the United States representing all of the interests, Iowa and California, that everybody sort of had a big say in whether or not -- which of those extraordinary events occurred, electing somebody to be the president or removing them. I think that is part of the beauty of the system. And of course, it was even more in place then because senators were not popularly elected. So you had to sort of persuade the legislatures of the various states who would then pass on their views to the senators about what was really in that state’s best interest.

 

But it shouldn’t be easy, in the same way it shouldn’t be easy to elect the president. And it shouldn’t be easy to amend our Constitution. It should certainly not be easy to undo the votes of 63 million people by removing a president and then potentially taking a second vote that would even bar him from future federal office. It shouldn’t be easy.

 

But look, there’ll be some living constitutionalists out there who will say the two-thirds really means the majority or 40 percent or whatever the number will be to actually vote to convict him and remove him. And that’s what they’ll try to do. At least in their dreams, they will.

 

Prof. John C. Yoo:  Constitutional moment. That’s what they call it, constitutional moment. So let’s turn to an interesting development just in the last day. We’re recording this on December 20. In the last day, Speaker Pelosi seems to be taking some advice from Laurence Tribe of Harvard Law School and some of the members of the Democratic party -- has decided new point measures yet for the impeachment trial or send the articles of impeachment to them. And her claim, and the claim of others, has been that they won’t send the impeachment over until they’re sure that the Senate is going to adopt rules for the trial that they think are fair.

 

What do you think about that? First, I think this is the first time this has actually ever happened. Now, we’ve only had three impeachments in our history of presidents, but this is the first time the House has delayed and threatened to withhold the articles from the Senate.

 

John G. Malcolm:  I think this is just insane. The Framers of our Constitution must be rolling over in their graves. So the House Democrats controlled the process in the House. Article I, Section 2, gives them the sole power to impeach. But they did it by preventing the Republicans in the minority from calling the witnesses whom they wanted to call. And now they are trying to exert that exact same leverage over the Senate that they have to be satisfied that the Senate will allow Mick Mulvaney, John Bolton, who knows, maybe Don McGahn to testify. And they’ll have to agree not to call Hunter Biden or Adam Schiff or the whistleblower. It’s outrageous.

 

Article I, Section 2 gives the House the sole power to impeach. But Section 3 gives the Senate the sole power to try impeachments. There is a whole debate going on in the faculty lounge at Harvard Law School between Larry Tribe, who has said that this is all perfectly fine, and Noah Feldman, who has now written an article that says that not only is this not perfectly fine but that the President has officially not been impeached until the articles are actually transmitted over to the Senate.

 

The one thing that’s just crazy -- I don’t think the American public, even any fair minded American is actually going to end up buying this. This is really the equivalent of a prosecutor charging somebody, damaging their reputation in the press and in the public, and then saying, “Oh, but you know, we’re not going to give you your day in court.” And Larry Tribe said, “Oh, no. This is the equivalent of a prosecutor who indicts somebody and then finds out that the jury has been fixed, not bringing --”. Everybody has known that the House is controlled by the Democrats. The Senate has been controlled by the Republicans. Nothing has happened. None of these Senators have been bribed to vote for President Trump. It’s a terrible analogy.

 

And the other thing, of course, is that impeachment is an extraordinary remedy. It is designed to say, “We cannot wait until the next election to remove this miscreant from office because horrible things are going to happen every day this person remains there.” And now they’re saying, “Well, maybe it’s not that serious. Maybe we can hold it over his head until the next election after all.” It completely undercuts the message about why they needed to put the country through this gut-wrenching procedure in the first place. I cannot imagine that this will stand -- that they take a few days over the Christmas holiday to name the managers. Okay. But I can’t imagine that the Senate will put up with this.

 

And there may even be an effort, not only a PR effort, but an effort to somehow amend the Senate rules that says that if they don’t transmit the articles over to the Senate by a date certain that automatically the charges are dismissed for, essentially, want of prosecution. But I think what Speaker Pelosi is doing is just terrible, and I don’t think the public will stand for it.

 

Prof. John C. Yoo:  I actually think there’s more on that than Society members would think. But I think Tribe is completely correct. I think Larry Tribe has it actually right. And Noah Feldman is wrong I think in part because he doesn’t understand how the control functions of Congress work. So think of a bill. When the House passes a bill and it finishes the text that gets voted on, yeah, there’s some maybe ceremonial administerial transmission of the bill to the Senate. But there’s progression in the House that say, “Well, we’re not going to quite send that over to the Senate for them before they can take up our bill.”

 

President Trump has been impeached. You may not like it, but he’s been impeached. The reason -- this is interesting -- I think the reason why Pelosi could hold off on appointing managers, can hold off on sending the articles is not a Constitution. It’s because of the Senate rule. The Senate rules say that once the articles are transmitted, then the Senate has to go directly to trial. So if the Senate wants to, they could change those rules and say, “We will immediately take up the articles of impeachment once they’re passed by us. And we’re not going to wait around for any House managers.”

 

If the Senate, those who are on the same side or those who want to prosecute the President in the Senate want to, they can start making the case. Or as you say, John, the Senate can say, “We consider the impeachment to have been voted on, approved on X date,” as it was under the Constitution, “and therefore the trial will start on January 6. And if the House wants to send anyone over, they’re welcome to send them over. If not, we’re going to go ahead with the proceedings anyway. We’ll move immediately to a vote.”

 

But it’s not the Constitution that allows the House Speaker to start playing games with transmission of the report -- I’m sorry, the article or the appointment of managers. The Constitution doesn’t mention anything called House managers at all. The Senate -- as you were saying, the House has the sole power to impeach. The Senate has the sole power to set their own rules, and they don’t have listen to anyone from the House if they don’t feel like it.

 

The second point to make that we haven’t mentioned is the politics of it. I think Pelosi is just shooting herself in the foot here because, if you were a Republican, you don’t mind if the trial starts a little late. You don’t mind if the House and the House Democrats cause senators who are running for president in their party to have to delay and spend more and more time in a Senate trial not doing anything but sitting in their seats and listening.

 

So I think if you were a House Democrat, you know that, as you were saying, the impeachment is weak. You know it’s not going to pass in the Senate. I think politically you’re making a mistake by saying you’re going to stretch it out and maybe delay things. Before we --

 

John G. Malcolm:  I agree with everything -- go ahead. I agree with everything you just said. So I agree with you that the Constitution is silent on this because, of course, the Framers never envisioned that the House would ever do something like this, that they would impeach somebody and not immediately transmit the articles of impeachment. And I agree with you that at the moment there’s not much the Senate can do, other than try to change their rules to say if you don’t transmit it by a date certain, then the following happens. We’ll begin the trial without you, or whatever it’s going to do.

 

And I’ll go further than that. I don’t think that they’re going to get the request two-thirds — maybe they will — to change the Senate rules to do that. So from a constitutional standpoint, all that, I agree with you. And I don’t think that Noah Feldman is right, that somehow the impeachment isn’t complete until the articles have been transmitted.

 

But on the second point, with respect to the politics, that’s where it will be decided. So I also agree that I think that Speaker Pelosi is going to be shooting herself in the foot. But the American public is going to decide that. And based on which way that polling starts to go, somebody is going to cry uncle. And my guess is at the end of the day that it’s Speaker Pelosi. But we’ll see.

 

Prof. John C. Yoo:  So we’re coming up at the end of the promised half hour. Before we go and turn it over to questions and comments, what do you think the Senate is going to do with the trial? So you saw Senator Schumer propose the Senate not only have a trial, like it did last time with the Clinton trial, but have witnesses produced. And he named a few, including John Bolton, the former National Security Advisor, Mick Mulvaney, the current acting White House Chief of Staff. Sounds like the Democrats actually want to have a much more robust and full trial than occurred under the Clinton impeachment. What do you think of that, John? What do you think the Senate will do?

 

John G. Malcolm:  The Senate Democrats want to call the witnesses they want to call. They want to call Mulvaney and Bolton, and they want to avoid like the plague, certainly, Hunter Biden and probably the whistleblower, too. I don’t know what’s going to happen. I predict it will be a shorter trial. We’re already hearing McConnell saying, “Look. We’re the jurors. It’s not up to us to make up for the deficiencies of the House. If the House wanted to call those people, they could have tried to enforce their subpoenas and waited for the court system to work its way through.”

 

Bad things can happen at trials. Trials can be unpredictable. And nobody knows exactly what any of those people are going to say. John Bolton may very well -- I mean, he was the National Security Advisor. He advises the President on foreign policy. But I think it’s no secret that he left under the not best of terms with the President. That seems to be a common thing with people who leave the Trump administration. There’s some bad blood there, so who knows what he would say?

 

With respect to Mick Mulvaney, with all due respect to him, he’s a bit of a loose cannon, too. And Exhibit A of that would be that press conference that he had recently. So there are dangers to the Republicans in calling them. There are potential dangers to the Democrats, too. So I’m thinking that in all likelihood, Mitch McConnell will say let’s get this over with and say it was a weak case and move on to re-election. But that kind of horse trading will still go on. And in the Clinton impeachment, they didn’t have live witnesses. They played a few video taped depositions.

 

This is not your typical trial because, of course, unless these new witnesses are called, everybody knows what all the witnesses would say because they’ve all testified under the klieg lights of TV or their transcripts have been released from the closed door sessions they had in the House intelligence committee. But I think from the Republican standpoint, they’re going to go, “We know we have the votes now. Let’s not take a chance on things not going so well with live witnesses. And let’s end this as soon as possible.” But we’ll have to see how that goes.

 

Prof. John C. Yoo:  I think one thing I would add is that Schumer’s desire to have these witnesses only underscores, I think, again how weak the investigation done in the House really was, how rushed and how incomplete it was. Certainly, if you really want to do a thorough investigation, you’d want to hear from these figures, along with a lot of other people.

 

      But the House put itself on an artificial schedule to finish by the end of December, which essentially put a two month time limit not just on the investigation but all the reports, arguments, debate, and the voting, which they have completed. But it just shows, if you need to have new people show up in the Senate who were never actually involved in the investigation, that the House itself didn’t do its job correctly. I think that’s McConnell’s point. Why is it the Senate’s duty to clean up messes that the House --

 

      One last issue before we definitely turn it over to questions, and maybe I’ll just briefly mention it. Although, we can [inaudible 00:31:15]. I think President Trump’s wonderful Christmas present to all presidential junkies and future biographers is his letter that he sent to Speaker Pelosi. He writes a lot about the presidency. This thing was great. I love this letter because this is why you have White House staff is to prevent things like this from ever leaving the White House.

 

      You rarely get to see a sort of unexpert, unedited, direct view of what a president’s thinking in documents. Although, this has been maybe one of the ways Trump has disregarded the political norms of the presidency with the tweeting, with the calling into TV shows and radio shows, with the long rallies. He doesn’t have a filter. He’s bypassing not just television networks and the newspapers when he speaks directly to American people. He’s also bypassing the White House staff and his administration because I really recommend people take a look at this December 17^th letter. You’ve probably seen different bits of it in the media. It is unlike any letter any president has ever sent.

 

      The only ones I can think that are similar, a letter that Harry Truman once sent to a, I think, Washington Post critic of his daughter singing where he wrote in the letter that he was going to punch the guy in the face. And then there’s another [inaudible 00:32:44]. I don’t know if it was a letter. I don’t think it was a letter. It was a statement where Andrew Jackson, who Trump kind of models himself after, when told that the governor of South Carolina was going to resist enforcement of the federal power of nullification debate, Andrew Jackson said, “I’m going to raise an army of 10,000 men. I’m going to invade South Carolina, and I’m going to personally hang that son of a bitch.” And that’s the only two things I can think of that are remotely close to this Trump letter. It’s a gold mine for presidential historians, biographers, and psychologists.

 

Some claims in it like, “This is nothing more than an elite partisan attempted coupe that will, based on recent sentiment, badly fail at the voting booth. You are not just after me as President. You are after the entire Republican party. Because of this colossal injustice, our party’s more united than ever it has been before. History will judge you harshly as you proceed with this impeachment charade. Your legacy will be that of turning the House of Representatives from a revered legislative body into a star chamber of partisan persecution.” This is great. That is a great letter.

 

But aside from the unedited part about this, it’s also you can tell Pelosi has really gotten under Trump’s skin. Put aside, I think, the posturing Trump’s doing the nation’s work. He doesn’t care. Here you can see President Trump is really upset about being impeached. He is really ticked off. He is not considering this nothing. I think it’s going to get actually worse and worse during the trial. That’s another reason I think McConnell probably would like a quick trial because God knows what’s going to happen as it goes longer. What is Trump going to do next?

 

And as you know, my solution is to let Trump represent himself per se in the closing argument so he can get it all out. Now we’ve got this on paper. Let him have at it in front of the Senate where they can’t ask any questions or talk back to him. But this was -- I really -- this was an incredible -- one more quote I’ve got to say. “This is not a somber affair. You are making a mockery of impeachment, and you are scarcely concealing your hatred of me, the Republican party, and tens of millions of patriotic Americans. The voters are wise, and they are seeing straight through this empty, hollow, and dangerous game you are playing.”

 

Presidential communication letters have never been like this except for maybe handwritten writings by various presidents that their staffs successfully squelched them somehow. So that one last thing just shows, I think, that as the trial goes on you’re going to see the White House staff have less and less ability to constrain Trump and get him to act within past traditional norms. He's going to break with things like this.

 

John G. Malcolm: It is certainly true that Nancy Pelosi and the Democrats have gotten under the President’s skin. A lot of stuff appears to get under the President’s skin. And I absolutely agree with you that keeping the trial short, one of the reasons why it makes sense is there are only so many tweets that he can send out during a short trial. And you never know what effect that is going to have. I thought it was -- there are a lot greatest hits to this letter. I thought it was a very strange letter when I read it in that you are right that there are parts of it that are pure, unexpurgated Trump. And then there are other parts of it where clearly somebody read it and wrote it in a slightly more sober fashion.

 

I know we want to get to our questions. I’ll just read my two snippets. So at one point in the first page, he says that Pelosi dares to invoke the Founding Fathers, and how dare she do that. And he adds — and this is pure Trumpian — “Even worse than offending the Founding Fathers, you are offending Americans of faith by continually saying, ‘I pray for the President,’ when you know this statement is not true, unless it’s meant in the negative sense. It is a terrible thing you are doing, but you will have to live with it, not I.” So that’s Trump.

 

On the other hand, I could not imagine Donald Trump writing, “The articles of impeachment introduced by the House judiciary committee are not recognizable under any standard of constitutional theory, interpretation, or jurisprudence.” So somebody was looking over his shoulder and saying, “You might want to change that, or how about adding this line?” But it was certainly a remarkable letter. And I hadn’t heard that about Harry Truman, so let’s hear it for the haberdashery -- for the haberdasher. I think that’s great to punt out the guy who criticizes his daughter. And I guess with that, maybe we should open it up for questions.

 

Micah Wallen:  We will now go to our first caller.

 

Ken Kano (sp):  Hello. My name is Ken Kano, and I have lots of comments. But let me ask my question. When impeachment proceedings are brought, is there a requirement that these acts have been incurred while the president is president?

 

Prof. John C. Yoo:  Great question.

 

John G. Malcolm:  Yeah. That’s a great question.  John and I have discussed this before. There have been impeachments in the past of judges for conduct that occurred before they were judges. One, for instance, was impeached and removed for lying on the FBI background check before -- which was obviously before he became a judge. But John has correctly pointed out that judges serve under the Constitution subject to good behavior. So perhaps there is a different standard that is --

 

Ken Kano:  -- Wouldn’t the standard for a president be lower? The standard for a president would be lower because, as I understand, it’s a criminal act. And if the Constitution doesn’t say a president can be impeached for acts during their term of office, it’s up to the House and Senate to decide what that means, right?

 

Prof. John C. Yoo:  No, actually I think the presidential standard is higher, much higher. Judicial standard is --

 

Ken Kano:  -- What does it say?

 

Prof. John C. Yoo:  It says you serve on good behavior. That’s the judicial standard. The presidential standard is treason, bribery, or high crimes and misdemeanors.

 

Ken Kano:  That’s not my question. My question is what is it --?

 

Prof. John C. Yoo:  -- No, I know. John’s point is that the reason why judges might have been impeached, have been impeached, sorry -- the reason judges have been impeached successfully for conduct that occurred before they were judges -- there’s another famous case where there was a judge, a federal judge who took bribes while he was a state court judge or state legislature and then was removed. But the reason why you could perhaps impeach judges for things they did before they were a federal judge but not a president for things they did before they were president because the standard for judges is lower.

 

And I think John’s right about that because that was my argument, too. But I actually wasn’t sure that judges should be impeached for things they did before they took office either. I don’t think presidents can be impeached for things they did before they were president because, at that time, they were not federal officers, not by the impeachment clause.

 

So what I think really would be [inaudible 00:40:15] -- for example, Bill Clinton. He was accused of doing all kinds of terrible things when he was governor of Arkansas. I think those are legitimate grounds to impeach Bill Clinton. He can only be impeached for treason, bribery, other high crimes and misdemeanors.

 

And when you look at the constitutional language, it talks about impeaching and removing [inaudible 00:40:36]. Those are things they had to have done while they were officers. I don’t think it could be for things they did before they were in office.

 

John G. Malcolm:  I do think it’s an open question. It clearly lays out a category of people who can be removed, so that would be federal officers. But it doesn’t say only for conduct that they did while they were federal officers. I don’t think that’s happened here. I don’t think that President Trump is being impeached for whatever. But maybe if they had made an allegation that when he was candidate Trump and had actively colluded somehow with the Russians, maybe then this question would come up. But of course, none of that’s in either article of impeachment.

 

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

 

Rob Henneke:  John and John, this is Rob Henneke with the Texas Public Policy Foundation. Merry Christmas to you both and thank you very much for the distraction this Friday afternoon before Christmas.

 

Prof. John C. Yoo:  Yeah. Merry Christmas to you, too. So if you’re in Texas, are you hoping for [inaudible 00:41:45] under the tree?

 

Rob Henneke:  Well, I mean, sure, ‘tis the season.

 

John G. Malcolm:  He got his Obamacare ruling under the tree. Congratulations for that, Rob, by the way.

 

Rob Henneke:  Thank you very much, John. I’m excited about that opinion this week. So I want to walk into the question for you both, and this has been a great discussion. One of my observations with Schumer and the House Democrats wanting a, quote, “impartial trial” in the Senate or wanting to call these witnesses is the perception that the House proceedings have been so partisan and gone so bad that they’re kind of hoping that the Republicans would return in kind and put on the same kind of show and call Hunter Biden and a bunch of witnesses. And if you throw enough mud around, everyone gets dirty.

 

So I think it was -- part of the hope was to just make this thing so mutually partisan and ugly that there would be a pox on everyone’s houses to try to save the opinion of this. But in kind of the light, there’s been a discussion that an option that the Senate has, because this is a, quote, “trial,” would be to entertain basically a 12(b)(6) motion or a dismissal motion at the outset. A member of the Senate could do that. It would be proper, and it could just be an up or down vote right there. I think initially that that was discarded because of not wanting to -- of the public opinion perception of not wanting to short circuit the process.

 

But as the circus gets -- adds more rings over in the House, what is your strategic opinion about the Senate simply, whenever it gets it, dismissing it right off the bat, taking a vote up or down, everybody’s on record, and we’re done? And also, what do you think about the constitutionality of disposing of the impeachment of the Senate via a dismissal motion?

 

Prof John C. Yoo:  That’s a great question. I had actually argued back in October when the House was first starting and we saw [inaudible 00:44:19] that the Senate, rather than [inaudible 00:44:24] the Senate trial, the Senate trial rules are what will influence the House. And I thought what McConnell could have said at that point would have been, if the House uses these unfair procedures, the Constitution doesn’t require there to be fair procedures. But we think they should be fair.

 

If the House doesn’t adopt them, then the Senate will do something [inaudible 00:44:48] or a summary judgement motion and just say, “Look. You sent over your facts. We’re just going to vote on the facts and not even have a trial because your proceedings are so shoddy. You’ve proved the facts that you produced aren’t even enough to come close to the legal standard.”

 

What’s interesting is what Schumer wants to do is add more facts to the record that the House didn’t produce. So I think it’s certainly within the Senate’s prerogative now. The problem is whether you could get enough votes for that. So if you take some of the predictions correctly, there might be two or three Republican senators who might even vote to convict.

 

But if that’s true, there might well be two or three Republican senators who want to allow some kind of proceedings to go on rather than to vote right away on a kind of summary judgement in 12(b)(6) motion. And I expect that’s what will happen. Although, I think constitutionally there’s no reason the Senate can’t say, “Our trial is we looked at the facts you sent over, and we find them insufficient as a matter of law to meet the standard for impeachment and no proceedings necessary. We quit.”

 

John G. Malcolm:  I think that’s right. I think that they wouldn’t just take the articles and immediately have a vote. I think what they would do is allow the House managers to make arguments and then have a discussion essentially as to whether there are any material facts left. Chuck Schumer, of course, wants to be able to supplement the record by adding the witnesses he wants and not the witnesses that the Republicans might call to counter that.

 

And I think that John is also right to focus on the senators who might be very wary of all of this. So the Democrats have them, too. So Joe Manchin and certainly Doug Jones and possibly others are going to be -- maybe John Tester, but he just won reelection. I said Manchin -- going to be looking over their shoulders. But the Republicans have got -- there’s obviously Mitt Romney out there. But you’ve got Martha McSally and Tom Tillis and Cory Gardner and Susan Collins who are going to be running in tough reelection races.

 

And they’re going to be concerned as to how it’s going to look if they immediately vote to dismiss without calling any live witnesses. But it’s certainly an option. The Senate, just like the House, had the sole power to impeach and decide what their procedures were going to be. The Senate has the sole power to try impeachments, and they can decide what their procedure is going to be.

 

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

 

Michael Rosman:  Hi, this is Michael Rosman with the Center for Individual Rights. Once again, congratulations, guys, on a great presentation. I had a question. I would like to follow up on the first caller’s question with a quick follow up, which is is it your position that Spiro Agnew could not have been impeached for the things that he was forced to resign about because they took place while he was governor of Maryland? My question, though, has to do with the second article of impeachment. And I want to push back just a little.

 

There are those who say that the President’s resistance to all requests for testimony, documents is extreme and unprecedented, that previous administrations have asserted executive privilege. And they have withheld some documents, but there have been some kind of give and take and negotiations that have gone on over the course of time, but that this particular resistance is complete, essentially a middle finger to the House, and is so extreme that it is interfering with the House’s ability to oversee the Executive Branch. So I’d like your opinion about that line of argument.

 

John G. Malcolm:  Well, I don't know. Look, your question, Michael — first of all, it’s great to hear from you — about Spiro Agnew is a really good one. I don’t know what the answer would be about impeaching a federal officer, specifically a president or vice president, for pre-office conduct. Spiro Agnew is actually a very good example. But of course, he -- with respect to the latter, and again, it’s the Holder Justice Department that said the President’s immediate advisors are absolutely immune from congressional testimonial process. It doesn’t get more immediate advisors than the President’s Chief of Staff and National Security Advisor.

 

John Bolton has said, “Look. I’ve gotten a subpoena, and I’ve got the President asserting a privilege.” His very able lawyer, Chuck Cooper, filed essentially a declaratory judgement action to say, “Tell me what to do.” And the House said, “Well, never mind.” And they withdrew their subpoena. So they were a little bit late to the game here.

 

With respect to Don McGahn, a district court judge ruled against the President. But unless you’re prepared to say that the President has no right to appeal this to the D.C. Circuit, then it just strikes me as being overbroad. The President is not acting in a frivolous way by making these arguments. It seems to me that he should have his day in court.

 

And just because the Democrats want to rush to get this done because nobody’s paying any attention to any of the people whom they have running for the Democratic presidential nomination, that’s their decision to make. They could have issued these subpoenas a long time ago and been further down the road in terms of this process. But they find themselves in the situation they’re in because they delayed.

 

Prof. John C. Yoo:  I think the executive privilege question is actually very interesting, this second article. You could say I just don’t believe in executive privilege at all, which is the position that the House took. They have a strange argument where they do believe in executive privilege, but then they say but President Trump’s invocation of it was complete lawless. A more subtle argument might be there’s no such thing as executive privilege in the face of an impeachment investigation, which makes it different a little bit, I think, than Mike’s comment earlier about the consequences for the other areas where you usually see executive privilege invoked, like oversight hearings. It could be that that were true.

 

That was an interesting question. There’s no legal precedent for it either. There’s no court decision certainly. I read the framing debates pretty closely about impeachment, and I don’t see any real discussion about issues one way or the other.

 

The second thing I think the House Democrats could really get impressed, as far as I can tell, was they could claim, “Look, because --” — and this would be closer to [inaudible 00:51:57] — “because the Supreme Court has said the impeachment is a non-justiciable political question, we’re going to address fights between the Congress and the President about impeachment,” and that includes whether the Congress can force members of the administration to appear, that includes whether the House can force the White House to make documents available and communications and texts and emails that they want to see.

 

So the House could have said, “Look, in the absence of any judicial decisions at all and all likelihood that courts will never decide this, then we’re entitled to use the articles of impeachment to try to pry loose the information. Otherwise, it’s not really possible to run an impeachment trial.” Now, I think that’s not true because I think they’re contradicting themselves because here they say, “Well, everything we’ve done so far is enough to meet the standard for impeachment. We don’t really need to hear from these administration people.” So if you don’t really need to hear from them, how it can be really an obstruction of Congress because you already --

 

Michael Rossman:  -- So you’re saying that Article I disproves Article II?

 

Prof. John C. Yoo:  Exactly, by their lights. At the bottom, I do think, though, if you look at Nixon v. United States -- I’m sorry. U.S. v. Nixon, the Supreme Court does see such a thing as executive privilege. And it does say that, in certain areas, it’s close to absolute. And it does involve the areas we’re talking about here, not the discussions about environmental enforcement or discussions about how they’re responding to the investigation itself, but discussions about national security, military, and law enforcement issues. The Court gives the highest protections for executive privilege, so you would think the President actually does have a pretty good case to invoke it here.

 

He didn’t -- now, what I would prefer, actually -- he didn’t invoke it with the new Mueller investigation. And I think if the House had played this differently, they might have been able to get the White House to agree to wave executive privilege, too, just like the way they released the transcript of the call, which you would think that document with the transcript of the call is one of the most protected documents by executive privilege. The House released it almost immediately after all this started going on. And maybe they could have persuaded the White House to do something similar with providing witnesses and so on. The House’s drive to get done by the deadline was what made it impossible.

 

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

 

Mike Stern:  Hello, this is Mike Stern. My question actually also related to Article II, and I think you have covered a lot of what I wanted to ask. But let me just make two observations maybe you could respond to. One is, while there’s some elements of executive privilege or immunity involved here, the House alleges, and I believe correctly, that the President produced no information, like no documents from any of the agencies in the State Department, Defense Department.

 

I don’t believe there was any executive privilege involved in that. And I believe the basis, to the extent there was one, was the October 8^th letter from the White House counsel, which was kind of a somewhat less inflammatory version of what John Yoo characterized as the President’s crazy letter, which is basically this is an entirely illegitimate investigation. So we’re not giving you anything. You’re getting nothing. It’s not really -- I don’t really think you can call that executive privilege.

And the second element goes to the administration, of course, takes the position, and this is consistent with prior administrations, that the courts can not hear these cases at all, like when the House tries to enforce a subpoena. So if they’re right, if the courts agree with them, then would you say that, in that situation, impeachment is proper because it’s the only mechanism then that they have to resolve these claims, whether it’s executive privilege or the “screw you” position, whatever it is?

 

Prof. John C. Yoo:  It’s interesting. I do agree with you in a way that Trump’s letter -- it’s actually from Cipollone, the White House counsel basically said, “We’re not going to cooperate. The whole thing’s illegitimate.” And it goes well beyond any claims — you’re quite right — well beyond any claims of executive privilege. It’s mostly political opposition to the investigation. That’s interesting. So I think that that might have sparked this reaction from the House. I quite agree with you that the House itself took such an uncompromising position because the White House took such an uncompromising position, too.

 

I think at one point no one was going to -- no one had political interest in compromise because I think the White House pretty immediately came to the conclusion that the House was going to impeach no matter what they did. The House would have -- I don’t think would have seen anything Trump was doing, even though the White House doesn’t really have an interest in a delay.

 

But I agree with you on that letter. It wasn’t really legal. There were some parts of it that were executive privilege. But a lot of it went well beyond executive privilege, for example, just one example, ordering people who are no longer government officials not to appear, like Rudy Giuliani, for example -- he’s no government official. It’s not possible for him to have executive privilege with the President. The executive privilege only applies between the President and other -- his government aides or campaign officials or so on. None of those would be protected by executive privilege. So that’s one.

 

So your second was really interesting. So suppose the courts refused to get involved, and they won’t rule on executive privilege. What actually can the House do to force a president to provide witnesses and information that aren’t even legitimately covered by executive privilege, even before you get to what’s legitimately covered by executive privilege? Here, I think you have to go to — and this goes to the last point made by Mike Rossman, too — you have to go to what the Framers thought would happen with oversight generally. And there, I think you would say Congress has to use its other powers that it regularly uses to elicit cooperation and information from the Executive Branch, which includes cutting off funds, blocking legislative priorities, not confirming people, all the usual day-to-day tools.

 

So actually, one signal that the House wasn’t serious about this is the same week they approve an article saying the President is committing obstruction of Congress and is impeachable for that, they also say, “And we love this new U.S./Mexico free trade deal, and we’re going to sign off on the budget and the omnibus spending bill, too.” If you were really serious about getting the information out of the President if you don’t think the courts will rule, you would never have done those other two things. You would never want to make life easy for the President and hand a victory to him. You would do the exact opposite.

 

John G. Malcolm:  I agree with all that. It’s a great question, Mike. I don’t know exactly, of course, which documents have been withheld. But I just want to note, not that the President hasn’t been obstreperous, if not obstructionist, but there are some people who did work within the administration, including political appointees like Gordon Sondland who did testify. They didn’t get their documents, but they did, in fact, testify. The President didn’t race to court to try to stop them.

 

And of course, Rudy Giuliani is a private citizen, but he is the President’s private lawyer. So there might have been other privileges that the President might have been able to assert with respect to them. I agree with John that the other branch of government has other levers of power that it can pull, both the House and the Senate, confirmations in the Senate, legislation, obviously, in both the House and Senate, appropriations, etc.

 

The only other point that I would make is that you began by saying if the Court buys the argument that the question presented, in terms of the struggle between these two other branches is a non-justiciable argument, that argument is made fairly regularly by the Executive Branch. It is very rarely adopted. Sometimes they’ll abstain from something for prudential reasons, but courts generally take a dim view of, “What do you mean we can’t even consider this?” So it’s a hypothetical. It’s a perfectly legitimate question. But it’s not likely to happen would be my guess.

 

Micah Wallen:  All right. And with that, we have used up our time for today. I’d like to, on behalf of The Federalist Society, 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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