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tv   History Bookshelf Laurence Tribe and Joshua Matz To End a Presidency  CSPAN  November 7, 2019 10:15pm-11:18pm EST

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>> i'm pleased to welcome laurence tribe and joshua matz. the carl m. loeb university professor and professor of constitutional law at harvard. matz is a constitutional lawyer. previously he and tribe have co-written uncertain justice, the roberts court and the constitution. in their new book "to end a presidency, " they address one of today's most urgent questions, when and how to remove a president from office? although the constitution gives congress the power to impeach, the matter is not as simple as a vote on whether or not the president is a national menace. ultimately impeachment is a long, trying process that calls for political judgment of the highest order. whether you think impeachment is necessary or a partisan conspiracy, to end a presidency is for anyone who wishes to understand how this immense power should be
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deployed. a reviewer writes, impeachment is a fearsome power, this bracing restrained and fiercely judicious account of the processes, origins and purpose explains why no u.s. president has ever been removed from office by impeachment, and what it might mean if one were. now please join me in welcoming laurence tribe and joshua matz. (applause) >> thanks, very much. can you hear me? thank you so much, and thank you all for being here. i really appreciate politics and prose giving us this platform, and i'm eternly grateful to my co-author joshua, who is a wonderful colleague and working through some of these deep problems. he was probably my favorite student since barack obama, and that is saying a lot.
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>> we work well together, and we have different cohort perspectives. i want to talk a little bit autobiographically how i came to the subject of impeachment. it will give you a gloss on the book and where it comes from inside of me. i was never taught anything about impeachment and constitutional law. wasn't part of a curriculum. we were studying mostly the dormant commerce clause and occasionally some first amendment law, but since i was about joshua's age, that is, since 1974, during the watergate scandal that brought down richard nixon, i obviously started thinking very seriously about impeachment and what it was all about. to a newly tenured law professor at harvard, impeachment looked, at the time, like a rather practical way to preserve the nation. by pulling down a
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crooked president, preventing him from wrecking our constitution, by ignoring the rule of law and using executive agencies like the fbi and the cia and private thugs to boot, in order to hurt his political opponent. that seemed like an astonishing threat to the rule of law and to our system of government. little did any of us imagine we would see much of same thing but with the hostile foreign power as the colluding entity in achieving presidential authority. i spent the four or five years after the watergate scandal studying the whole constitution and writing about it as a whole. looking at things that seemed
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rather marginal at the time except maybe for the impeachment clause, which had its day in the nixon era, the emoluments clause was interesting, never thought it would come in handy, you never know what will be relevant in the constitution and indeed my approach to the constitution and the approach really of this book is to see the constitution as a whole, as an integrative structure, not simply as a series of discreet points and powers and rights and responsibilities, and that's why, as we wrote about impeachment and studied it, we thought about how it would fit into the system of government, what might happen to make the presidency too weak? if for
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example, we followed the path that some countries had followed of making anything that might be as vague as mal administration or misbehavior or misconduct, a basis for removing a president, from american states as a way of removing their executive authority, massachusetts, new jersey, pennsylvania, and a smattering countries abroad. nigeria, palau, sierra leone, russia. we would have a very different system, it could have been almost like a vote of no confidence. if on the other hand, we approach things the way argentina or germany or india or south africa or poland did, we would have been a very different kind of country as well. they basically say that anything that is a crime or that is unconstitutional violates the basic contract that keeps the chief executive in power. if we had that, then how often would a court dare to hold a particular presidential app like the travel ban or
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something unconstitutional if they knew it would immediately bring down the president? there are a lot of things the president can do that are consistent with our system of government, directing that anyone who beats up a black person or a muslim would automatically be pardoned and not subject to prosecution. that's not a crime. but it's truly impeachable, and then there are a lot of crimes that aren't impeachable. tax fraud. tax evasion. so we had to formulate and we took our guidance from what the framers themselves thought and did in developing this living constitution. we had to formulate an approach, what is or is not impeachable? it's
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pretty clear that not every instance of perjury should be impeachable. i concluded that when clinton's lying under oath about sex with an intern was treated as a way of bringing him down, but that charge on which he was impeached was one that got only 55 votes in the senate to convict. 45 voted to acquit. 55 was not enough. you need 67. the other charge against clinton, obstruction of justice, which was a repackaged version of the perjury charge, came out 50-50. clinton emerged triumphant. his popularity soared. that gave us a clue to what some of dangers of impeaching prematurely or too soon are. somebody can be the most terrible demagogic liar, he can melt the fabric of our
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society, but if it doesn't look like attacking his position through a bill of impeachment will result in anything more than a claim that he's been vindicated, you see, i told you, no obstruction, no collusion, vindicated and then empowered to do even more horrible things, then you have to think twice about whether impeachment makes sense. and joshua is going to talk about some of the other factors that make even a successful impeachment, if by that we mean an impeachment that results in forced resignation as with nixon or actual conviction which we've never done. some of the factors that make a fully successful impeachment extremely convulsive for the country. that if the factors that allowed someone like trump to be elected president in the first place are things that won't go away, impeachment is not a magic wand, we've been amazed by how many people send us e-mails or tweets, can't wait for your book because it will remove gorsuch from the court. president is
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illegitimate, get rid of him, and everything he's done is unwound. that's kind of magic wand thinking. there's a drug that you will find amusing to read about in the books which is supposed to make headaches go away, and make anxiety dissipate, that kind of magical thinking about the power of impeachment really doesn't do much good. but at the other extreme, apocalyptic thinking, if we succeed in removing a president who is favored by 40% of the people, if the offenses and the abuses of power that people discover in the course of investigation succeed in getting two-thirds of the senate to remove him but
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millions of people still think he's legitimately there, that they're being deprived of the voice that they believed this guy would give them, then the underpinnings of democracy might be shaken. we don't really want 60 million alienated people running around, some of them rather well-armed. stability of the country is a fragile thing, and in much of the book we explore what i spent decades thinking about but never examining as systematically as we did here, in much of the book we explore how to navigate the shoals of silla and caribdus, what can we do with an out-of-control president? i was one of the people who thought even as early as midnight on tuesday november the i guess it was the 8th, 2016.time was ripe to begin impeaching the fella. because we talked a good bit about the importance of his not being simultaneously the owner
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of lots of companies that would be, if not bribed, at least greased by foreign powers in violation of i mentioned it earlier the emoluments clause. it's not just a technical provision, one of the things the framers most feared was foreign influence over our president. one of the things they most feared was the fact that we couldn't necessarily tell when that influence had yielded fruit. do we know why the president was so slow in enforcing the magniski sanctions, we suspect there is a connection between that and help from putin getting elected, and a book published by james clapper, facts and fears, may well prove decisive. clapper concludes, he's a former
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cautious intelligence guy who served under many presidents as dni and other similar capacities conclude not only is our intelligence community had fully concluded that russia directed by putin deliberately sought to help trump get elected as well as to hurt hillary and as well as to destabilize the country. not only that, but he's convinced, based on the fact that it was just 80,000 votes in wisconsin and michigan and pennsylvania that made all the difference in the electoral college, that putin was a but-for cause of this presidency. that's a rather powerful conclusion. it's one that is based more on hunch and common sense and experience than on any particular smoking gun, but
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unlike the smoking gun of the watergate tapes that nixon was finally ordered to turn over, there have been lots of smoking howitzers in plain view with this president. how do we react to those? shortly after he's elected, evidence emerges that all of the characters were meeting constantly and lying about it with russian oligarchs and members of the government. you look at the way in which our policy toward a country like qatar moves back and forth
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and can you plot the curve and turns out the curve exactly follows how nice qatar is being to jared kushner and his dad with respect to helping bail them out of the huge debt they have on 666 fifth avenue. it is not simply that this guy is a kleptocrat, but the creptocracy that is directing the foreign policy of the united states. that's disastrous, but doesn't immediately translate into the conclusion that we ought therefore to pull the impeachment cord and start that process rolling. i thought we should start with this investigation the day after he was elected. certainly when he was inaugurated. when he fired
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comey, i thought the case was clear, that was open and shut corrupt interference with an ongoing investigation. it was certainly obstruction of justice, like one of the main impeachment charges against nixon. and so i wrote an op-ed in the "washington post" four days later calling for the immediate initiation of impeachment inquiry. i was nervous about how far and how fast people like tom steyer were going. they weren't calling just for investigation. they were saying impeach now. as if there was a way to do that with a constructive outcome. four day after i wrote that op-ed, rosenstein appointed special counsel mueller. that, for me, was a sign. not that some guy on a white horse was going come riding in and make it all transparent and clear and
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convince the people who believe anything that trump says that what mueller has discovered is true. i never thought that. i always realized there would be things that trump could do to undermine the face of the american people in robert mueller, despite his integrity and how despite his support was when he was named. but it did seem to me that while that probe was going on, and it's been extraordinarily productivity with guilty pleas and people cooperating and indictments, while the probe was going on, we should hold steady, that we shouldn't jump ahead, we should continue investigating, we have a chapter in our book that i think joshua will enjoy describing because it's fun to write. i think it will be fun to read, about impeachment talk and how dangerous it can be to have too much of it, but it's not dangerous to have too much impeachment thought, and impeachment reading and
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impeachment understanding. as the american people need to understand what this tool is, where it came from. when it's not wise to use it. why the problem is not simply one of thumbs up or thumbs down, he's committed an impeachable offense or hasn't, but what should the frame of reference be thinking about when it makes sense to use this extraordinary power? and we use the history of impeachment and the strange abuses of that power. not only with respect to clinton, but there were people who wanted to impeach thomas jefferson because he was rather throw is appoint a new collector of the port of boston. now i like boston, and i wish jefferson moved a little more quickly, and i wish he hasn't, you know, held onto so many slaves. all kinds of things. but policy differences and ambient badness does not make the case for impeachment. we talk also about
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how president tyler was impeached because of his hyperactive veto pen. that was a good example how impeachment should not be used. when you just disagree very often with the president, and when -- in fact, we present a general theory of how to approach impeachment, and i suppose you could call it the shoe on the other foot theory. that is if you're ready to remove a president and believe can you generate a powerful and deep bipartisan consensus, in circumstances where you come out the same way even if you felt the opposite way about the president, even if you love this president's policies, if you were ready to conclude that you would in that event still make the fateful move to try removing a president through
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this power, then you've passed the, you might call it, for fans who are fans of john rawls, the veil of ignorance test, not knowing which side of the political rubicon you stand on, you are ready to think this person is so dangerous to the persistence of the republic, that you really ought to go. and i think i probably ought to go. i've been talking longer than i meant to, and i want very much to have you all hear from joshua, but i'm most especially want us to have time for q&a. thank you so much. (applause) >> i'm glad that larry spoke so much, it means i'll only speak a little because we want to leave time for q&a. one thing i should highlight is that much like the book itself, i'm not going to
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say much about president trump, apart from the -- we in writing the book came to at a particular moment in time, where we thought there was a president who was doing terrible things, that he was breaking the law, upsetting norms, that have brought the presidency into accord with the needs of constitutional democracy and destabilizing our position around the world, and it was clear there was going to be sustained impeachment pressure throughout trump's presidency. i think we can all agree that impeachment talk will be with us for many years to come, and so the question for us was a general question, when you have a president with whom you strongly disagree and you think are doing things bad for the society, under what circumstance do you reach for the big red button, where you break the glass and all sorts of bad potential consequences but worth it to save the society? when do you instead choose other means of engaging with the president, of constraining his abuses, of thwarting norm violations and trying to keep the ship of state afloat to the next presidential election. and so for us, the question was never impeach our nothing, it was
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impeach or what else? and when is impeachment really the right move? as we saw, it there are basically six questions that you have to ask and answer in order to make that decision, and it was those six questions that structured our book. and we ask them at a pretty high level of generality, though we provide tons of historical examples and support from constitutional law and do at times speak about trump. the very first question is to begin at the beginning, why is there an impeachment power? what were the framers trying to do when they included this process in the constitution? and start by talking about benjamin franklin, who at the constitutional convention got up and said if we don't provide a way to get rid of the president peacefully, they will assassinate him. as he saw it, world history was pretty clear on this, that the stories that the frameers knew of failed leaders was a tale of assassinations, coups, revelation and other sad endings for everyone involved and thought there had to be a way to break the cycle. for him
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this ancient english doctrine, fallen into disuse on the other side of the ocean but the colonists internalized as part of their legacy of english common law and said we can remove the president when he abuses his power in a way that imminently threatens society without killing him, without generally destabilizing the country as a whole, and the question of when you can do that and who can you do that was to the framers intimately linked to the question of what will the checks and balances look like? you know the question of who's going to be the president was linked to the question who can remove the president and when and why, and there were concerns with creating a system where you could have an adventurous, creative, energetic president, who could flex muscle and use
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powers in ways that were not foreseen but who could be ejected. and that understanding of what they were trying to do ran throughout their thought process, and we talk about the framers not because we think their word is final. the constitution belongs to the living, but rather because in order to understand the impeachment power week think it's vital to have a grip where it came from and what its role is in the broader constitutional scheme. and so in the first chapter we end by divining three impeachment lessons. the first is it was put in place to prevent abuses of executive power. the power vested in the presidency, but you have to give a fair bit of leeway, the constitution underspecifies what the powers of the president really are, and they have evolved in extraordinary ways across time. on the one hand you have to watch for abuse of power but need to measure that against evolving understanding against the president's role in american life. second lesson we offer is that in general, partisanship should not play a role in impeachment, and
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impeachments motivated by partisan or personal animus have not only historically failed and been condemned, if one were to succeed, the long-term consequences could be quite dire because they would destabilize elections as something we use to define who is going to govern our society for periods of time, and the settlement provided by election says important to maintaining stability. and the last thing we emphasize is that although it's tempting to focus on watergate as the obvious case to impeach, the impeachment power is savvier than that. it can attach where you have the president orbiting the cia to destroy his political enemies but it can also attach where you have a kleptocrat, where you have someone corrupt, a high-functioning moron, really anyone who uses their powers in ways that threaten to undermine our democracy as such. and so then we turn to chapter two to what is presented as the only relevant question. what is a high crime and misdemeanor? or
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put differently, what justifies impeachment? under the constitution, interpreting it in good faith, when is it appropriate to remove the president from power? there are some folks and gerald ford said this in the 1970s, there are folks who say the high crime and misdemeanor is whatever congress says it is and nothing more to the story and all of the legal stuff misses the underlying politics of it all. we think that's right but uninterestingly so. it's right only if you think people in congress are not acting by reference to understandings that they and constituents have what high crimes and misdemeanors means and only wrong if you think they're real bad faith actors who don't care about the constitution and value and its structure and we have to hope that that's not the case because as i'll emphasize, the constitution gives congress many tough judgments to make and doesn't tell them how to make them, all of this ultimately depends on the proper functioning of political system and officials.
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so think inning about high crimes and misdemeanors, we're asking when the president is engaging, our bottom line is when the president has acted in a manner that renders him unviable as a leader of democratic state and poses risk or future damage to our society if he's allowed to remain in office. impeachment is not about punishing him for something he did. can indict him after he leaves office. so when is the president going forward a real risk to society? and there we emphasize at some length that corruption, betrayal or use of power subverting core tenets of government coupled with intentional and evil deed that risk injury to the nation define impeachable offense. basically, something so plainly wrong that no reasonable president could profess
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surprise at being impeached on the grounds, that's obviously as larry said not the same as committing a crime. some crimes are impeachable, some impeachable offenses may not be crimes. the question is if we survive this presidency, what nation will we become and in some ways, will we be a democracy anymore? in that chapter we address the allegations relating to president trump, identifying a few that we think could potentially justify impeachment, but explaining why some of the others that have been raised in the public probably don't. this leads me to the question no one ever seems to, when should congress exercise the power not to impeach. if the president has committed a high crime and misdemeanor or bribery or treason which justifies the president's removal from office. congress doesn't have to impeach, the constitution doesn't establish the house as a roving commission to smite every wronger and it doesn't mandate when they could theoretically be justified. instead, here as in so many other case, the constitution gives congress this power along with many others including the
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power of censure, the power of the purse, power of personnel, powers of investigation and oversight, powers to legislate, and it says figure out what you need to deal with the problem at hand, and if you think about impeachment that way, not as is there a high crime and misdemeanor, if so, surely we must do this, but instead as as one power on a continuum of others in restraining a president who's gone off the rails, the framework looks different. every power especially the great powers of the constitution come with a price when exercised, and the potential price of impeachment is great. in chapter three of the book and i'll sketch it out, we basically say thinking about impeachment, have you three questions to ask, what if we impeach too early. what are the risks of impeaches not at all or too late and what risks are unavoidable in any impeachment,
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no matter how well timed and well justified. and there we try to provide a broad framework we think can apply to any presidency to come, to emphasize the judgment calls that have to be made among great uncertainty about what the future may hold and about how people will respond to an effort to end a presidency. and, of course, the main driver in that effort is always congress, and this brings us to chapter four where we talk about the role that congress should play, and we begin at the beginning, why did the framers give this power to congress, we address at some length why they invested it in the house and the senate and divided it between the two branches? it was quite unusual in the history of western constitutionalism. we also note they basically considered gives it to everything they possibly could have considered giving it to. they considered the house, the senate, the supreme court, the senate and the supreme court sitting together, a council of all of the state governors, petition of the state legislatures and committee of the chief justice of all of the state supreme courts. these are people who left no stone unturned, including stones they were actively creating at the
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constitutional convention. and to understand what that means, we not only talk about why they gave it to them, but how congress understood that power. these questions are not answered by the constitution. what should the trial process be? should there be evidence? lawyers? what's the standard of proof. how do you set about adjudicating articles of impeachment, and a comprehensive tour from beginning to end how impeachment actually works, and emphasize that the way in which congress has designed the process reveals its understanding of the values at stake. first among them being the importance of make the process fair and impartial and legitimate, because at the end of the day, the american people need to accept congress'judgment. even people strongly opposed to it from the beginning and the least congress owes the people of this country is fairness. now this leads us in turn to the fifth chapter of the book where we step back. lately there's a
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lot of impeachment talk going around. members of congress are expected to have opinions whether you should impeach president trump. i suspect many people in this room have thoughts on that matter as well, that's not normal. you know, when i was writing this books i call my grandparents pretty early on and said we're writing a book about impeachment he and they said, that's funny, i don't remember that being a thing people talked about. when the president did something bad, no one raced to the air and said we must impeach him. they definitely did not have #impeachment, but in fairness, they did not have the internet. his reaction struck a cord with me. why is it we live in a period where impeachment has become a default response to allegations of presidential wrongdoing in politics? how does that situate in u.s. history. and it turns out when you go back as we do in chapter five and look at impeachment
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resolution introduced in the house, every mention of impeachment in congress, and every major national political movement that had impeachment as a prominent theme that we really do live in strange times, that there were a few flashes and fizzles up until the end of the civil war, that impeachment vanished from the national scene until truman. when truman fired douglas macarthur, there was a national hue and cry laced with impeachment talk when he seized the steel mills, bu then impeachment, the president fell from the scene until nixon and after nixon it disappeared until after iran-contra with reagan and it appeared a little bit more in that president after reagan and bush but wasn't until bill clinton and the clinton impeachment, and ever since then that impeachment was a dominant motif how americans think about politics and the presidency. in that president, what's kind of alarming to me is there's been a ton of impeachment talk with no
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discernible benefit and quite a few harms. certainly doesn't appear to be the case that presidents are notable constrained or likely to be impeached in this period of time, if anything hyperpartisanship suggests they are less likely to be. at the same time, this massive oversupply of impeachment talk has given our politics more existential character, it encouraging tribalism and polarization and worse, it can help a president abusing his power because as we saw under bush, obama and now trump, presidents facing impeachment threats from the ideological extreme of the other side use them to motivate base, enhance funds and enhance loyalty from within their own political party and worse, a party that runs on a promise to impeach historically loses in the midterm elections. and in that way as well, a party that overdoses on impeachment talk may ultimately suffer in its ability to restrain the president in other means. we worry that we live in a strange new world of impeachment talk that the president, including presidents who misuse thier
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power may benefit and the underlying dynamics of democracy may suffer from the change and we suggest a simple answer. people need to chill out a little bit and this is a running theme of our book, impeachment is an act of judgment. the constitution sketches in vague terms when it is necessary and appropriate. when it ultimately asks about judgment to understand which powers to use, which political strategies to invoke, what manners of understanding our democracy are most appropriate to meet the threat of a rogue president? impeachment is not always the right first move and last move. and this leads us in our final chapter to ask a very simple question, can the impeachment power achieve purpose in a world of broken politics? the answer is simple. the u.s. constitution essentially makes a wager on the u.s. people. it gambles. that presidential wrongdoing
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that genuinely menaces our democracy will arouse durable bipartisan opposition strong enough to overcome partisanship and polarization and inertia and all of the dynamics that interfere with effective governance in our country. and that gamble doesn't seem well-placed these days. alternate facts, tribalism, all the buzz words that amount to decline in our democratic function and back sliding have made it difficult if not impossible to muster the national will and consensus that impeachment seeks of us. and that's not to say it can never happen and not to say should never happen, but is to say especially as long as people attach the fantastical consequences to impeachment, so longsa the president's opponents view it as a cure-all, that will solve problems and set the world aright and as long as supporters see it as a doomsday device, one that threatens to implode in
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everything they fought for, the impeachment power can't function, that the constitution requires the american people tong clearly and to think reasonably and creates a scenario which if they don't, impeachment may serve only to undermine and rather than to protect our democracy. so although this is a book that is called "to end a presidency, " in some ways a better title may have been to save democracy. that is the ultimate goal of the impeachment power and can only be achieved for people who fully and realistically understand the appropriate way to exercise it. (applause) >> now we have a costume change.
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>> friends, countrymen, lend us your questions. >> thank you so much for being here, and thank you to both of you for your words. the question that i have is related to the impeachment of andrew johnson in 1858. of course, kansas senator edmund g. ross provided the crucial vote which acquitted president johnson by one vote. one thing i was wondering, one thing i qwas wondering is if you perhaps know if senator roth left thoughts that provide emphasis on motivations as to what motivated him? >> i don't think i do, and i suspect that joshua may not, but i want to answer unless i'm
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wrong, i want to answer a somewhat broader question. we look at the impeachment of andrew johnson and the failure to remove him as a good example of why it's important to be precise about the reasons for saying that someone ought to be removed. in johnson's case, they ended up with a terrible reason. they said it was because he would not go along with the senate with respect to stanton, that is he fired stanton without senate consent. >> stanton was the secretary of war. >> right. and it turned out that the act he was said to have violated, the tenure of office act, was not that much long afterwards held unconstitutional. so the whole theory of the impeachment really missed the mark. what was really wrong was johnson and what we might argue well justified as removal. it would have gotten the extra vote? we really don't know. he was trying to undo the result of the civil war. he was fundamentally hostile to lincoln's whole program and to
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the idea of the union and to the elimination of slavery and it was over that broad question he was a destructive force that we think ought probably to have been removed. something we don't really speculate about. >> thank you. >> thanks good question. >> maybe a case was clear for impeachment would be with president nixon, and if president nixon had not resigned, and if he had been impeached, would he have been convicted and removed from office? >> so, the historical evidence strongly suggests he would have been. part of the reason he ultimately did resign is delegation of prominent republican senators went to him and said you're going to lose in our chamber. and at the time,
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his popularity ratings had been plummeting. he had essentially sabotaged all of his relationships with the republican leadership in congress, and national impeachment sentiment which was first polled in this period of time increased steadily until it hit 57% at the time he resigned in august of'74. so it seemed clear that's the direction the country was trending in. what's interesting about the nixon case, we talk about this in the book, particularly at the end of chapter four. what factors make it likely congress will impeach? a case study to see when the stars will align where that can be possible? and nixon did everything sort of wrong. by the end of his political career,
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judgment almost completely escaped him. choosing gerald ford on the theory no one would be willing to make that man a president. oops. he referred to him as insurance policy, turns out insurance of something quite different and other respects, sabotaging relationships with the press, digging in rather than admitting wrongdoing, fighting to the end, destroying relationships with his own party. nixon at the end, though not at the beginning did everything wrong, and a sign of how power can corrupt, but power can reveal, and in that circumstance, nixon's pretensions to absolute power and the manner he responded to the impeachment investigation was itself evidence of the fact he should have been removed. and this is a point we emphasize in chapter three, we talk about the risks of impeaching too early, that the manner in which the president responding to accusations of wrongdoing are the manner in which trump responds to the mueller investigation in congress may itself provide the most important evidence available to us whether this is someone who we can leave in the
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white house, and that was a big part of what was going in nixon's final days. his own response to the crisis proved he had to go. nation saw that. >> let me add one thing to that. one reason we don't have the counterfactual history, that is we don't have nixon sticking it out and testing the question whether, in the end, he would have been removed, is that he had a sense of shame. that differentiates him significantly from certain other presidents. >> that is, he did not want to go down in utter ignominy, whereas there are presidents who get off on the fight and enjoy the gladiatorial spectacle which they will be at center stage. another fundamental difference though the democrats controlled the house at the time, another fundamental difference there
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were moderates in the republican party. there were people, we don't normally think of goldwater as a moderate. we think of him as holding down the right end of the republican party. in fact, goldwater was a mccain-like figure in some ways, he was someone who was not sort of absolutely stuck in the mud with a particular loyalty not to the country, not to the constitution, but to a specific faction and a specific president. it would be hard to find the republican statespersons today who would go trump and tell him, mr. president, the jig is up. and it would be hard to imagine him listening. that makes this moment incredibly perilous one. >> that's the point -- >> if we could reserve it for folks who are standing up there. if you would like to ask a question, please. >> thank you for the answer. i'll take it as two yeses. >> i agree with you. i mean, i understand why impeachment is probably not a wise move
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forward, but you know, our democracy is at risk, and what do we do? >> so, you know, writing this book was a very traumatic exercise for me especially. i started out much more flamingly eager to get rid of this monster than joshua did. >> i want to be very clear that i'm not a fan of him either. it's a difference of method. >> it's a difference of method, and you are more naturally balanced than i am. the chemistry is good, because i tend to start as a fire brand and then gradually, joshua manages to convince me that even though it may feel good to vent, the temperature has to be turned down. so writing this book, i mean, as i would do these passages, i would say to myself, but everyone will say how can you stand not getting rid of him? and the answer always has to be, there are
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many other avenues. when you see the #metoo movement, when you see the kids mobilizing and registering people to vote and saying we'll never vote for anyone who was not for very strong gun safety measures, when you see marches that are as large as any in the history of the country. i see the possibility >> not quite as large as his inauguration. >> no, of course, that was the largest group ever. we know that. when you see that, i get enormous home. one of the reasons i love teaching, i'm always in touch with the younger people and with them i think the future lies. somebody like me who is almost 77, i'm not necessarily going to see the day when the country
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regains its senses, but i also don't think that the passionate satisfaction of a voting to impeach him only to see him vindicated in the senate would feel very good at the end. we would be shooting ourselves in various orders. seems to me we have to do other things. conditions that might make it possible to actually get a large majority to vote him out are the very conditions that would allow congress in different control to perform its oversight function to subpoena some of the people that the house intelligence committee left on the cutting room floor, to actually expose to the live the day, a lot of what's been going on, and i have faith that when it's all exposed, the willingness of the country, at least to re-elect him in 2020 will have dissipated, and i say that because i think that's a real possibility. one might not like to think it, but we might have to live for eight years under this kind of quasi-tyranny, and
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i think the main thing we have to do, as the doctors say, is do no harm. that is, we should not exacerbate the chance that he will grow roots deep into the american culture that cannot be pulled out, and seems that from that point of view, and i saw a number of people looking very skeptical as joshua was talking about relying on congress. it does feel crazy, he knows as well as i do, to rely on congress to stand up. the framers imagine we might have a tyrannical president. as we say in the book -- i say a low-functioning moron, in the book i say a high-functioning moron. they thought wrongly the electoral college would stop it. they didn't imagine we'd have political parties. what i think they did not also imagine was
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that we would never have a congress as beholden to the president, as supine, as spineless as this one. i mean, that creates a situation of maximum peril. branch we most rely on to check him is a branch that has to be dramatically changed in november 2018, i would hope. we also rely on the courts, but we saw what the gorsuch court did with respect to labor union rights and collective bargaining and collective vindication of rights and don't know how long kennedy will stay there. we cannot rely on anything other than we, the people, in a very large but
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hopefully peaceful uprising to make the ultimate difference. >> maybe two very short additions to that. one point is i feel there are folks in the country and for example, mr. stier in this group, whose attitude is the president is terrible and action equal to the depth of our situation is impeachment. and there's this idea that because we face a great problem, we must invoke an equally extreme and great power to meet it. part of what i worry about with that kind of thinking is it not only devalues other forms of political engagement and beside the point against what really matters, but that it actually tends to accelerate and encourage this no-holds-barred existential view of politics which people go from electoral loser to impeachment in waiting. both sides use the rhetoric and it's justified to president trump. but there is a question about how you stabilize the situation and the idea that it's impeach or nothing because nothing else could possibly be good enough i think is dangerous. and one other point which is fine, let's imagine you do want to impeach. great. mazel tov. you have 40% of the country backing
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you. 60% doesn't. you will not be successful. you don't have the votes in the house right now. i don't mean you personally. let's imagine you do believe impeachment is the appropriate thing to do here. the question is how do you assemble the political will and forces that you need to actually make that happen in a way that doesn't blow up in your face or vindicate the president? the question then is, is impeachment talk the best form of political messaging and rhetoric and strategy to build that political coalition? maybe if you secretly really want impeachment, the best thing do is to shut up or use other forms of political messaging and rhetoric and engagement to assemble the political will and majority to investigate and do other things which might make that practicable. to me, the impeach or nothing mentality is wrong on the merits and takes
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for granted an assumption that the best strategy for restraining an out-of-control president. >> let me add one little thing, >> there is another go. >> i want to say the shut up strategy is not practical. we may shut up but tom steyer and his 30 million bucks won't. and the other side will say see, it's like the terrible arguments that were made in korematsu, they are hiding in the weeds. people say suddenly impeachment talk is calming down, they are reading pelosi's playbook. we know what the agenda is. i think we have to be realistic, can't stop talking about it but have to persuade one another in dialogue but it is not right to pull that cord just yet. another question, hopefully? >> to pick up on your idea of
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alternatives. one could almost have made the case, and i'll talk about president johnson but the more recent president johnson whether or not his activities with the regard to vietnam, lying about what was going on, finding and creating reasons for the engagement, it could arguably have constituted grounds for impeachment? and i'm almost as old as you, and had my own experiences in that time and day, but the point is that an alternative movement since the dialogue arose that created somehow pressure on the president to say hey, maybe i did screw up.
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>> but then we got nixon. >> don't blame me. >> but to answer your question, maybe that could have been grounds for impeachment, but impeachment was not feasible. that is, the gulf of tankan resolution was a thinly veiled mask. we know that. >> right. >> seems the president or the yellow cake stuff and the reasons for going to war in iraq made up, lies, a fabric of lies, lying in order to get the nation into war, i think passes our threshold of being impeachable but the point of much of our book is so? it's impeachable. what do you actually move to impeach? what will happen next? how will the president react? will that build up a momentum of what we need. >> in 1983, for example, maybe other folks want to ask questions, want to give them a chance. president reagan sent u.s. military forces to granaida without congressional
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authorization, and a member of congress, ted weiss, said you can't do that, that is a clear misuse of presidential power. he was a real manhattan democrat, and mayor koch once said about him, weiss is the guy when you thought he needed to do it would impeach god, and then koch added, but the thing is he's intellectually honest, if he did impeach god, he meant it. he never got around to god but got around to reagan. he introduced an article of impeachment against president reagan. plausibly well justified. scope of presidential war power are couple of votes and the american public approves what reagan had done. it looked strong and a nice way to break out in the view of the post-vietnam lethargy. and so in that circumstance, like in so many others, presidents use their powers in ways that a law professor could plausibly contend with madison quotes qualify in the high crime and misdemeanor and the question is, is american democracy imperilled and the american people think of it that way? nobody really, did except mr. weiss, and i think that broader political question is in some ways the more important one, rather than the technical question than he might plausibly be able to
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characterize something as high crime and misdemeanor. i think someone is behind you waiting to ask a question? this will be the last question. >> sorry, i came in late. hopefully nothing like this has been asked before. but one of the things that, it goes to the what can we do, right. >> and one of the things i would really love to see and participate in is if we could crowd fund and crowd investigate, collect, analyze, et cetera, get a whole bunch of people to throw in 20 bucks, right, to hire folks like you guys, right? >> what are we going to do? >> we do most of the stuff pro bono, so >> a whole bunch of people, i
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see trump as the flag at the top of this huge organization, this huge building, and the building itself, we need to take the spokes out of the wheel. one by one, collect information and prosecute individual crimes, and basically dismantle the crimes >> that's what mueller is doing. i expect him to indict quite a few more people. >> yeah, but he's a fed, he has some constraints on him. >> i think if the question is are lawyers and other people in civic society examining the trump organization and those around it and those in trump's inner circle and seeing if they have broken the law. my strong intuition is yes, i say that in part because i am one such person. >> as am i. we're working on all these. >> we are accounts on the emoluments clause, it addresses foreign payments and foreign
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powers, but there are efforts afoot beyond the mueller investigation to do that. the more important thing is not are people looking into this because there are lawyers and journalists and many others who are, the question is, is there a political movement through the that cares about it and can translate that into something that moves the ball in terms of electoral outcomes? at the end of the days, you could put a thousand of us in the room. a thousand larrys in the room might break the sheer force of intellectual power. a one vote majority >> would they really take a thousand of me?. >> i love you for your modesty. >> at the end of the day, a room of larry tribes is not worth nearly as much as a single vote control in the house of representatives. the story isn't are people looking at the information. the story is the information being found utilized in way that can shape the electoral mass. to be honest my answer is i hope someone else is doing that because i'm busy working.
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>> but i read the "new york times, " and seems like they are. >> right. >> is the fact that people ask me what does the national archives do? what does an archivist you? and then there is a confusion around the role of each of these institutions and i have learned a lot about the declaration of independence, the right.
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>> next university of kentucky history professor on president andrew johnson. part of a symposium hosted by the u.s. capital historical society commemorating the 150th anniversary of the 14th amendment's ratification. >> we will end with mark summers from the university


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