On this week’s Amicus, Dahlia Lithwick talked to Michael Gerhardt, a constitutional law professor at the University of North Carolina School of Law. Gerhardt is an expert in the relationship between the president and Congress, and he spoke with Lithwick about the state of the impeachment inquiry so far, what happens in a possible Senate trial, and how our current situation might differ from what the founders envisioned. This is a part of their conversation, edited for length and clarity.
Dahlia Lithwick: It seems to me that we’re having technical fights now. I don’t even just mean the process fight about whether this impeachment inquiry was fair. We seem to be just stalled out on the idea that maybe presidents do this all the time. Presidents withhold aid all the time, presidents have side deals all the time, presidents do bargains all the time. Is that what it’s going to come down to? To hear Devin Nunes tell it, this is just presidenting, and there’s nothing improper about it.* And to hear Adam Schiff tell it, this is a massive abuse of power. In other words, I almost feel like having gone through a political process, we almost have come back to this legal or quasi-legal question, Michael, which is, is this an abuse of power?
Michael Gerhardt: You’re right, we have come back to that question. It’s not entirely clear to me how many people on the Republican side would agree on the basic facts. But yes, there has been relatively widespread recognition that there are certain facts, and these facts do present the question you just described, a question that has constitutional ramifications. Some Republicans clearly think the president did nothing wrong. Some Republicans think it’s all the Democrats’ fault. But ultimately, I think it’s Congress’ job to make a determination about whether or not what has been described by a variety of witnesses rises to the level of an impeachable offense.
So, the Framers deliberately left impeachment kind of gauzy. We have high crimes and misdemeanors, which we know to mean stuff that is a high crime and a misdemeanor—it doesn’t necessarily have to be a statutory criminal act. And then we have treason and then we have bribery, and it’s all very gauzy and inchoate. And into that now falls the acts that you’ve described. And I just keep wondering if it is a failure of law or a failure of framing by the people who drafted the Constitution that we now don’t quite know what we’re trying to pin onto the donkey here.
I think, in large part, you’re probably correct in describing the current situation. But what we’re also having to confront at some level is whether or not the Constitution is broken. The framers did design a process, did vest Congress with the authority to make a determination about particular facts and, again, about whether those facts might rise to the level of something sufficiently serious that would justify congressional examination. And maybe even an impeachment proceeding, which we’ve seen in the House, and maybe an impeachment trial, which we might end up seeing in the Senate. But as you also suggested, the original Constitution would set all these mechanisms in action but may ultimately not work very well.
It’s a process that requires patience. It’s a process that requires serious consideration of the possibility that there are facts that Congress has to take into account. But at the same time, since the Framers established this impeachment process, a considerable amount has changed. Political parties have taken on a tremendous role, and the fidelity to those parties has become enormously intense. And the attachment to those parties, of course, has become incredibly strong. And perhaps political parties [have] become so important in American life that they simply have clouded people’s perception of reality. And that’s not what the Framers ever anticipated. The Framers thought that the American people would care about facts, the American people would largely become educated, and they would care about the Constitution. And it’s not entirely clear that they do.
If you are descriptively correct, this is just broken. I would probably filter into what you just said that the Framers also obviously didn’t anticipate a media landscape in which there was no way to penetrate the afactual, ahistoric reality we live in. But are you just saying that … sorry, it’s broken? “You broke it, you bought it, America. I’m moving to Canada.” Is that where this is headed?
No, no. I’d like to think that’s not what I just said.
I care about the Constitution. I have obviously devoted my professional life to it, as a constitutional law professor and somebody who studies constitutional history and does believe in the facts. Nevertheless, the time has moved on from the Framers, and we live in a world in which the media 24/7 has developed the possibility that there are competing realities. The American people tend to listen to or read those things that reinforce their opinions and their perceptions of the world, and that’s just made it much harder for Congress to function in any way that people generally might consider to be legitimate. That’s a problem that’s more difficult than ever before. It’s not a problem I can solve, obviously, as a constitutional law professor, but it’s a problem I can identify.
So you had said that the next step is that this goes to the House Judiciary Committee and they draft up the possible articles of impeachment. I wonder, if the three articles that were adopted with respect to Nixon were obstruction of justice, abuse of power, contempt of Congress, is that what we are building to here? Is that what you imagine the articles are going to look like?
The impeachment articles that were approved against Richard Nixon had charged Richard Nixon with three different kinds of misconduct. The first impeachment article approved against Richard Nixon had charged him with obstruction of justice, the second had charged him with directing the heads of the CIA and IRS to harass his political enemies, and the third impeachment article had charged him with failing to comply with four legislative subpoenas.
If we fast forward to the present circumstances, what we discover is that those three impeachment articles could well be applied to the current occupant of the White House. But if we listen to the president of the United States, Donald Trump, he has argued that he’s absolutely immune from having to comply with legislative subpoenas. He has also argued that he’s entitled not to produce any information that puts him in a bad light, that has to be turned over either to Mr. [Robert] Mueller or to Congress, and that the only way he may be held accountable is the next election in 2020.
The problem is that the president of United States, Donald Trump, has tried to rig that election by asking the president of Ukraine to make a public declaration against one of his political rivals. And that’s a disturbing prospect, because what has happened is the president has dismissed the rule of law as being relevant to his life. Some of us who still take the Constitution rather seriously believe that those articles of impeachment that had been approved against Richard Nixon turn out to be relevant, as well, to the misconduct of President Trump. First, he has obstructed justice a variety of different ways. Second, he has asked the president of a foreign country—actually asked the presidents of a few different countries—to intervene in the next election on his behalf. And then third, he has refused to comply with more subpoenas than most people can count.
I keep talking about this impeachment trial, and it occurs to me, I don’t actually know what it looks like. I’ve heard tell that the senators are not allowed to, for instance, speak. They’re not allowed to ask questions. If they have questions, they have to deliver them to, I guess, the chief justice. That they have to surrender their devices. They’re not going to be able to tweet and interact with humanity. Can you just walk us through, this is presumably, we’ve just gone through the grand jury portion [in the House]. Now we’re going into the trial portion. If articles of impeachment are advanced to the Senate, what does a Senate trial even look like?
A Senate impeachment trial turns out to be under the control of the Senate majority leader. That happens to be Mitch McConnell. He will design a process. We don’t know exactly what that process might look like. It might actually end up being an expedited consideration of the impeachment articles that will have been approved by the House of Representatives, and then perhaps dismissed by a majority of senators as being sufficiently serious enough to justify the ouster of the president of the United States.
Wait, so they can decide not even to have the trial itself? They can make a preliminary decision to just dismiss the thing in its entirety?
We don’t know what Sen. McConnell’s going to do with respect to the process that may be used, in response to the articles of impeachment, that will have been approved by the House of Representatives. But what might happen is that someone may make a motion to dismiss those impeachment articles and simply stop any further consideration of the possibility of the president of the United States’ committed impeachable misconduct. That could happen, I don’t know.
But if we were to follow the Senate rules, they would have required a particular kind of process that would have enabled the Senate to take a look at the evidence that has been produced by the House. The House managers will have marched into the Senate to present whatever number of impeachment articles they have approved against the President of United States. We don’t know the number of those articles, but whatever number may be transmitted over to the Senate will then be presented to the Senate. And then Sen. McConnell will have configured a process that, in all likelihood, will expedite the consideration of those impeachment articles.
He might allow the House managers to make arguments before the Senate that would support the impeachment articles that the House of Representatives has approved. And then he might actually allow for some consideration by the Senate of those articles, and he might even allow the Senate to vote on those particular articles. It seems unlikely he will call any witnesses to testify before the Senate. He doesn’t want to have a protracted proceeding in the Senate. I suspect what he wants is as expedited a process as he can get that would ultimately result in the acquittal of the president of the United States of whatever misconduct the House of Representatives has charged against him.
And there was reporting in the Washington Post late Thursday suggesting that this is a little bit of a tightrope for Mitch McConnell, because the president doesn’t … I think McConnell’s proposing a two-week, right at the beginning of the new year, in and out, but at least have some kind of process, and Donald Trump wants zero process. He’s just very agitated and aggrieved and wants this to go away. I wonder what Sen. McConnell is thinking about as he’s trying to craft something that threads the needle between effectuating this outcome of getting it done and also at least the appearance that they have taken this seriously. What does he think about when he’s trying to build that?
What he’s trying to think about is how can we expedite the consideration of whatever number of impeachment articles the House of Representatives has approved against President Trump. It could be two, it could be three, it could be four. One of those impeachment articles might charge him with having refused to comply with dozens of subpoenas. Subpoenas are lawful orders, which the president has defied and he’s ordered a number of his current and former officials not to comply with them. President Nixon had actually not complied with four legislative subpoenas. President Trump has not complied with, and ordered others not to comply with, far more than four. It’s dozens of lawful orders the president has defied.
Sen. McConnell might conclude that there should be a process for expediting consideration of an article based on the president’s refusal to comply with a number of subpoenas. He might also put together a process that would require expedited consideration of any self-dealing by the president, which we haven’t heard about much lately but has been taking place over the course of the last three years. And the House of Representatives might ultimately approve an impeachment article that would charge the president of, essentially, self-dealing that has bettered himself financially at the expense of the Constitution, and in a manner that could offend the Constitution, and comprise an impeachment article that would charge him with misconduct. The majority of the Senate is likely not to take any self-dealing impeachment article very seriously and perhaps might either dismiss it or maybe take a vote on it, and ultimately not convict him on that basis.
It is also conceivable that the House of Representatives might approve another impeachment article which charges him with abusing his power by soliciting the president of Ukraine to intervene in the next presidential election on behalf of the president of the United States. Sen. McConnell might get that dismissed quickly, or Sen. McConnell might allow the Senate to vote on it. But a majority of the Senate may turn out to be likely not to take such an impeachment article very seriously, and not convict the president on that basis. And then what we’d have is the president of United States remaining in office and then running for reelection, and then the next critical judgment will have to be made by the American people.
One question that I should have asked early on, but John Roberts, the chief justice—his role in the impeachment is almost entirely ceremonial?
Correct. He doesn’t sit down with Mitch McConnell and cook up a playbook. Right. He is not part of designing this process.
Mitch McConnell will have designed a process that could possibly be challenged by Democratic senators. But a majority of Republicans control the Senate. The chief justice of the United States, per the Constitution, is charged with presiding over a Senate impeachment trial, but he will not be able to reach any substantive judgments on anything. And he might not be able to reach any judgments about the process either, because according to the Senate rules, whatever the chief justice decides may be appealed to the entire Senate, and then a majority of the Senate may decide whether they agree with whatever the chief justice has said. Meaning that a majority of the Senate gets to decide what the process is and what are the substantive determinations about whether or not the president of the United States committed impeachable misconduct.
Listen to the full episode here, on the player below, or wherever you get your podcasts.
Correction, Nov. 26, 2019: This piece originally misspelled Devin Nunes’ last name.
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