On this week’s Amicus, Dahlia Lithwick spoke to Laurence Tribe, professor of constitutional law at Harvard, about some of the legal questions the impeachment inquiry into President Donald Trump’s behavior has brought up. A portion of that conversation, which has been lightly edited and condensed for clarity, is below.
Dahlia Lithwick: We’ve had quite anxious listener mail this week saying, what does Congress do? What teeth can Congress put into a system where essentially the nihilist argument has been made—“I spit on your system, your system does not bind me”? Is it in fact the case that [Congress will do] things that have not been done since the Teapot Dome scandal? Is it the case that we’re going to start jailing Hope Hicks, that we’re going to put Corey Lewandowski in the stocks, we’re going to fine people? Is that power? Is that the teeth that Congress has?
Laurence Tribe: Well, a lot of people, I think, would have a lovely time imagining those perp walks, but I think that’s not a realistic option. It’s legal. It’s a power that Congress has. It theoretically has the power. The Supreme Court has, without dissent, affirmed it—the power to actually conduct a little trial of people who refuse to comply with subpoenas and orders to show up and produce documents. And if they don’t go along, they can be locked in the basement of the Capitol or they can be subjected to escalating fines.
But I think that would be a terrible distraction. Imagine in the modern world how that would look. It would really make the banana republic that the president has created look like sort of a banana soup republic. It’s just not a good idea. Not that we can’t do it—and maybe hanging it over the White House as a kind of sword of Damocles is rhetorically a good idea—but it’s not something I favor.
I think it would be a distraction. I think one has to go to court, one has to expedite proceedings in court. And if courts move too slowly, just with what they sometimes call all deliberate speed, then don’t wait. As I’ve argued in various forums, there’s no reason why impeachment can’t proceed right now on the basis of what we know while we continue to investigate. It would be justifiable for the House of Representatives to impeach the president for various abuses of power, particularly with respect to the way he withheld military assistance from a vulnerable Ukraine in order to benefit his own reelection campaign by getting manufactured dirt on Joe Biden and in order to achieve other things. That’s an abuse of power. He could be impeached for that tomorrow.
He could also be impeached for this kind of stonewalling, the “I spit on your Congress,” tomorrow. There’s no reason why these impeachments can’t proceed while Congress still digs around and tries to get to the bottom of certain details, which we needn’t know in order to say that he has abused his power in an impeachable way, but which the nation has a right to know. The way in which there is a kind of private State Department run by Giuliani and some thugs who were recently arrested and how this all has gone on under our noses for the last several months—all of that needs to be unearthed.
But he can be impeached in the meantime. And there’s no rule that says you can only impeach a president once. The stone wall that he had relied on in the Senate is beginning to crack. It’s not at all clear that the Senate will back him up. A lot of senators are so dismayed by the way he is throwing our allies, the Kurds, under the bus and virtually inviting ethnic cleansing. A lot of those people are beginning, I think, to reconsider whether they want to go down with this particular version of the Titanic.
So I actually said the same thing this past week, I think, in print: Don’t turn this into two years of waiting for [special counsel Robert] Mueller. If Donald Trump confessed to Lester Holt that he fired Jim Comey to get rid of the Russia probe, we don’t need two more years of evidence. And essentially we’ve got, as I understand it, the three articles of impeachment against Nixon: abuse of power, obstruction, ignoring subpoenas. We’ve got that in our hands, and trying to run after emoluments, which we’ve been doing for three years with very middling success, is not the way to go. I think the people who resist the analysis you and I just put forward tend to say, “You’re leaving too much on the table. You cannot leave on the table all the other bad conduct.”
But I don’t want to leave it on the table. As I’m saying, impeach the guy and keep pursuing him for all of these other things. I don’t think that having voted an article of impeachment, you then fold up your briefcase and walk away. He should not be allowed to get away with any of these horrible things he’s done. But that doesn’t mean that because he’s done so many abusive things, he can basically tie us up in knots and stay in power and take extremely dangerous steps that undermine our national security and erode our alliances, just because he’s done so much that’s wrong that we can never quite catch up. It’s like saying not just “I could shoot someone on Fifth Avenue and get away with it.” It’s that every time you go after me for shooting someone on Fifth Avenue, I’ll shoot somebody else and you’ll never catch up.
I think that the way to put a stop to that is to impeach him now. Not wait. But at the same time, don’t leave anything on the table. Continue investigating. … Just as the House of Representatives can pass various measures dealing with gun safety and climate—notwithstanding the fact that those measures don’t get anywhere in the Senate—so the House can vote for articles of impeachment and continue to investigate and continue to identify more abuses and put pressure on the U.S. Senate to confront this lawless renegade president. And if they don’t do it, they should pay a price at the election of 2020.
You mentioned that, to the extent that the House is going to continue to try to obtain documents and testimony, the correct path is the courts. And you also said, and I think this is correct, that’s going to have to happen on an expedited basis. We saw a little bit of that this week when the 2nd Circuit, in the case about Donald Trump’s tax returns, more or less said, “You’ve got 12 seconds.” It’s the fastest briefing schedule I’ve ever seen.
So I think one thing we’re going to see, presumably, is some of the courts speeding up so that this can’t be slow-upped until after the election. But it does raise the question that I think I’m asked, and I suspect you’re asked, Larry, more than anything else, which is: What is the role for the Supreme Court in all this? Are these issues going to end up in the court’s lap? We know that the court is not going to get involved on the merits in debates about the propriety of impeachment. That goes back to Nixon v. United States. Not Richard Nixon—this was a federal judge, Walter Nixon, who claimed in the courts that his impeachment trial had not given him due process. The court resoundingly says, “We’re not getting involved in your impeachment disputes.”
But there’s a second subset of questions, which has to do with the emoluments stuff. It has to do with the tax returns. It has to do with declassifying Mueller material. That kind of thing could go to the Supreme Court. That’s not in the bucket of things the Supreme Court won’t hear, per Walter Nixon.
Well, there are two different issues, Dahlia. The court is not going to review the merits of any impeachment article or the way in which the House goes about impeaching the president or the Senate goes about trying him. The court will stay out of that, as it did and made clear it was going to do in the case of Judge Walter Nixon, the case that you’ve pointed out.
But that doesn’t mean the court has to stay out of the ancillary fights over the evidence that has to be produced. So if, for example, the search for the tax returns in the case brought by Cy Vance, that one could get to the Supreme Court, or any of a number of other cases in which the administration’s far-out, legally vacuous, indefensible position is that you can’t touch us, we can’t be required to turn over anything because this impeachment whole thing is a kangaroo court—any of those claims could well get to the Supreme Court relatively quickly. The Nixon tapes case didn’t take all that long.
But we shouldn’t leave out of the calculus the fact that there are some people that the president is trying to gag and silence who are not within his control and who might voluntarily testify. Some of the people involved in Ukrainegate and look like they have things to say—and they are not in the control of the administration, and they may not resist testifying voluntarily. We don’t even have to go to court.
So the evidence is going to pile up from voluntary sources, including people like the whistleblower, and that pile of evidence can be accumulated while we try to get accelerated judgments from the judiciary, including the Supreme Court, in cases where witnesses are under the president’s thumb and are not willing to come forward and comply with subpoenas. And in the meantime, we can impeach the president. So we can do three things at once. And it seems to me that’s exactly what we need to do in this existential crisis that the president has created.
Listen to the whole episode here: