S1: What’s at issue here is not whether the president can, if he follows the right procedures, which the jail setting did not follow here, is not the question is not whether the president can sometimes impound or withhold funds. The question is why he did it.
S2: When you see the articles of impeachment, they came out and I think it was within Dr. King’s vision to have Americans dragged through a process where the president is going not going to be removed from office.
S3: They want to believe that we can rise above party and do what’s best for the country. But a great many Americans don’t believe that will happen. Let’s prove them wrong.
S4: Hello and welcome to tramcars time, Virginia Heffernan. So if yesterday was a Senate show trial that ran into the wee hours of the morning when everyone likes to party. Why weren’t there more literal dogs and ponies and maybe some Can-Can boys and girls? I mean, I just want someone to put the show in show trial. I was about to start today, but with not just dogs and ponies, but trying to produce actual perceptive perceptions about yesterday’s shindig in the Senate. But then I realized I just got to get into a discussion with my guests of this topic. They’re experts on the whole shebang. The presidency, the law and this impeachment, which however much midnight Mitch might try to stymie it is still a blessing. Susan Hennessy and Ben Whittis of Lawfare and the Lawfare podcast have just published an extraordinary account of the damage Trump has already done to the presidency. The world’s most powerful office. And they also signal the danger his precedent continues to pose to it. And making the presidency is a learned but also thrilling book. That address is no less a question than can this nation endure. Hey, but don’t worry. It’s also dishy, with a fantastically hallucinatory details of Trump as a real bull in a china shop of democracy. Wait, not a ball. It’s Trump. He’s a leviathan in a china shop. And Susan and Ben even have ideas about what we can do to pick up the pieces. I’ll be back with Susan and Ben in just a minute.
S5: But first, the tweets heading to Davos, Switzerland. Debate with world and business leaders embrace good policy and additional hundreds of billions of dollars back did and added states of America. We are now number one in the universe by far.
S6: It was exactly three years ago today, January 20th, 2017, that I was sworn in. So appropriate that today is also M L Day junior.
S5: African-American unemployment is the lowest in the history of our country by far. Also best poverty, youth and employment numbers ever. Great. Now many Michael Bloomberg is critical of Jekyll’s, who shape perhaps hundreds of people because he was carrying a gun and knew how to use it.
S7: Quickly killed. The shooter was beginning a rampage. Many is against the second day.
S5: His ads are fake, just like him. I will never allow a great Second Amendment to go and protected, not even a little bit.
S7: And they are taking the nomination away from Bernie. For a second time rag, I have never seen the Republican Party as strong and as unified as it is right now.
S8: Susan and Ben, welcome to Trump Cast. Hey, thanks for having us. I have never had both of you at once. This is exciting. Desperate times call for desperate measures. Yeah. Is that too? Actually, speaking of that phrase, I was just reading a federalist article from 2016 by a graduate student in Christian apologetics. The degree one does. I didn’t know there were still degrees. I think you should showdown with him, Ben. But in any case, he said desperate times call for desperate measures. October 2016. Remember the whole idea that we need to elect Trump immediately? Impeach him so we can get the savior. You’re Mike Pence, right? Right. So I think Republicans have been thinking about impeaching Trump since the start, too.
S9: Well, they clearly thinking about the trial. Wrong in that case. This is their chance.
S10: Right. This is their chance. They can edge out. And before we get to the topic of your book, let’s just quickly get both of you to weigh in on yesterday’s jamboree. Did you all watch all the way? We did.
S11: Well, I guess I gave up around midnight. So I guess all the way, not until 2:00 a.m. when I believe that they adjourned. But I watched most of it. And, you know, like, I was really, really impressed by the presentation of the house managers. I thought they really did an extraordinary and very effective job. Yeah. You know, that said, I think anybody who watched that and noted the contrast with the president’s defense attorneys who were sort of scattered and really weren’t making any kind of substantive defense of the president were sort of all over the place. And a lot of people walked away from that by saying, you know, this was just a clear victory for the House impeachment managers and they’re much better lawyers and they’re clearly winning this thing. You think a little bit that’s missing what the president’s defense attorneys are trying to do? Yeah. So I would sort of caution people not to comfort themselves with the optics of that, because it’s true that they weren’t persuasive or convincing, but they weren’t trying to be persuasive or convincing, at least not of us or of people who were watching both sides when they were doing was generating a series of very effective Fox News clips and also sort of throwing out every possible constitutional or procedural or factual argument they could think of. You know, even if they didn’t make sense and they contradicted one another and they contradicted the position that the Department of Justice is currently arguing in court and all kinds of other things, because really the strategy here is just to put out as many arguments as possible and let Republican senators decide which is the one that feels right for them, because then they can go out there and say, well, it’s true, the president did a bad thing and it’s true that all those other arguments were really bad and nonsense. But here, this is the one executive privilege or the role of the courts or or the founders intent, whatever it is that makes Ben Sasse get a warm, fuzzy feeling inside and makes him feel like he can walk out or Mitt Romney or Susan Collins or name whoever it is, who who needs some cover here. And what this was about is just generating as many options as possible for those people. And I think in that they were really pretty effective. And so I think what we saw sort of in day one was the way the strategy is going to play out and that it’s going to look very jarring in parallel. But whenever you zoom back, they’re speaking to different audiences. They have different purposes. And so we aren’t talking about an apples to apples comparison.
S12: To me, the story of the day was how effective Mitch McConnell is. And, you know, we watched essentially twelve hours of genuinely effective mustering of evidence by the managers, serious legal argument about how the Senate should understand the need for documents and witnesses. And all of it produced no change in votes. Mitch McConnell was able to hold his caucus together on everything that was truly important. And, you know, I do think that is a picture of the party discipline that is holding Trump in power. And it’s a it’s a remarkably. I mean, I find it very depressing. But if you’re evaluating what the constraints of our operating environment are, you got a real picture of it.
S8: Yesterday on day one, you know, I’m Susan Hennessey is kind of chump because I watched that the same way I watched Schiff and the other managers, the same way I watched Marcia Clark in the O.J. trial and walk away thinking, well, that was a slam dunk. He did it. And there’s blood leading to O.J. and it’s done. And somehow the sort of sophistry, rhetoric, posturing on the other side in that case. Managed to win the day, sip alone, and the others and Ciccolo are nowhere near the kind of carnival performers that say Jim Jordan and Mark Meadows are in the Congress, much less Johnnie Cochran. But that’s right. There was no if it doesn’t fit, you must acquit. Not to mention Johnnie Cochran had a pretty nice little bit of evidence where o.j.’s glove didn’t fit. It looks like all the gloves fit Donald Trump. But are these legal arguments? Did they do anything to arouse people or do they need that Fox News framework to give them the Jim Jordan punch? And what is the Fox News framework also? Because I haven’t seen it yet.
S9: I think the fundamental core of the defense is he didn’t do it. If he did, it doesn’t matter. And Democrats suck. Yeah. And all of the defenses fit in to one of those three frameworks. And so they veer from, you know, denying that the evidence says what it clearly says. You know, the if it does fit, you still must acquit. It’s kind of. Yeah. And to denouncing the process in the house and up to and including completely misrepresenting it. And you know, if I were Patz’s boloney and I had said the things that I had said yesterday in front of the chief justice of the United States, you know, about Republicans not being able to be in the skiff during these depositions, which was simply, flatly untrue. I don’t know. I mean, I would be concerned about the suggestion that I had been not candid with the tribunal or I would be concerned about having done that. But he doesn’t appear to share those particular scruples. They veer from from that to this kind of over arching constitutional argument, which is that none of this activity, even if true, is impeachable because there’s no such thing as an abuse of power and obstruction of Congress isn’t the thing. You know, I think Susan’s description of it as a sort of choose your own adventure novel, how you how the individual Republican senator wants to get to acquittal is a good one. They’re just kind of throwing everything out and saying, hey, whatever you want to latch onto is fine. They have this weird constraint on the defense, which is that the president has declared that, you know, the call was perfect and that his conduct is irreproachable. So not only do they require that they, you know, say that it’s not impeachable, but they’re not even allowed to make any tactical concession either. Also, but the individual senators are. And so they get to sort of do what they want with this. And I actually think a lot of the lawyers who were on Twitter yesterday, you know, denouncing the quality of the performance are thinking about it in too lawyerly a fashion. They’re not thinking about the ecosystem in which this material gets entered and what the role that it plays in it. And I suspect that Pat’s Apollonian J secular were quite effective within the operating theatre in which they’re actually playing.
S13: OK, let’s get to the book, because there were things first of all, I love this book, Unmaking the Presidency, and I was very happy to receive it early. And also in hardcover early, say that again, a little bit louder from the rooftop and from the rooftops. So it can be framed on Fox News. All right. So unmaking the presidency. Maybe you could tell a little bit the story of the book, the way that you that quite an elevator pitch, sort of something between an Amtrak to New York City pitch and an elevator pitch, because there’s a lot of storytelling in here. And I’m impressed that you all did this between fighting the good fight on lawfare. So so tell the story of it and then let’s figure out where impeachment fits in the unmaking of the presidency.
S11: Yes. I think the basic premise of the book is that Donald Trump has an actual vision of the presidency. And, you know, he’s not like a political theorist. And and he might not be able to articulate it in an cogent language, but he actually does have a vision of the purpose of the presidency and the manner in which the powers of the presidency should be deployed. And we should take that really seriously. And that’s because the American presidency is a changeable institution. It’s an institution that has changed a lot over time, sometimes in really dramatic and radical ways. And what Donald Trump is proposing in terms of sort of revision to the most sort of core purposes and functions of this office is unlike anything we’ve seen before. And so, you know, we tried to be really disciplined about sort of tracing. All right. We talk a lot about these norms and the president, you know, breaching these norms. And it’s sort of a cliche to say that. But where did these numbers come from and where did these expectations of the president? Where did we get this idea that the president shouldn’t interfere with law enforcement? Where do we get this idea that the president shouldn’t make money off of his office? How did this change over time? And it’s important to be disciplined about telling that story in the ways in which Trump is sort of a continuation of trends that have been going on for a long time and where he is something completely new, completely different. And that’s because the 2020 election is a decision point. We’ve had lots of you know, lots of presidents, all presidents have changed their office in some ways. And and we’ve had bad presidents before. We’ve had presidents who are bad at their jobs. And we’ve had presidents that were bad people. And how we determine whether or not an individual president is sort of a blip and just like a weird thing that happened for four years. You know, everybody kind of forgets about it. And then the next president comes back in and kind of we we go back to normal. We go about our business and the office doesn’t really change is whether or not the president is reelected. And so we thought it was really important that people sort of go into this election and we, you know, for our own thinking, really wanted to sort of get our minds around. OK. What is Trump doing with the office? What is he doing with executive power? And and what does it mean and how does it function structurally with the other branches, with with our sort of relationship with the government, with the way the executive branch works and manages itself, sort of. What does this really mean? You know, because. And what would it mean if we decide to ratify this by by re-electing it? You know, how might this play out into the future? And we come down, I think, on a pretty clear side that it would be bad and it is bad, you know. But but the intention here is it’s really just sort of take a historical look at how the office has evolved over time and really present the seriousness and sort of the gravity of Trump’s vision of this office.
S14: So you all know Ross Garba, the impeachment defense lawyer, and we had him on Trump cast really early. And he made the case that, you know, in spite of his politics, he’s considers himself a Democrat. He also feels that his obligation to yet defend the office in the case of the impeachments he’s done of governors. But in this case, there has to be someone he said, you know, whether it’s him or Emmett Flood or whoever who speaks for the office. Well, to my surprise, Ross has just come out to speak for the defense. You never hear it as if he’s Trump’s personal defense attorney, at least when I see him on Twitter. And I don’t really see him as someone who has the office, a stake in the office or, you know, in the executive.
S15: And so I started to think there’s no way to consider the office independent of its current tenant. We want to think that we can see it cleanly, but maybe it’s just like a CEO job or a captain job where precedent doesn’t really matter where the personality is. The quote office and then the next guy remakes it. Or are we in a nation of so much common law that these precedents are going to be binding?
S9: OK. So I want to suggest that you are falling into the trap of Trump’s vision of the president. So let’s go back and talk about the presidency before Trump. And then let me approach your question a little bit. backhandedly. OK. In the presidency before Trump, in what we call in the book, the traditional presidency, the office and the person are distinct. That means that there is a White House counsel who represents the institutional interests of the presidency itself. And then the president has personal lawyers to represent his personal interests. So if the president is under investigation, executive privilege issues, which are for institutional concerns of the presidency are handled by the White House counsel. But the president’s personal exposure and the investigation are handled by outside lawyers. Right. Yeah. So this is a it’s a complicated line and it’s a line that the borders are fuzzy, but conceptually, it’s a line that we all thought we understood.
S14: Can you give me an example of a past president where some of his actions. I was going to say his or her his actions have just delineated this just made it pattern. Sure. Yeah.
S9: Let me give you a really simple example of this. When Bill Clinton was under investigation from back when Ken Starr believed in investigating presidents, he asserted that there was a privilege that prevented his Secret Service detail from testifying about anything related to their protective function vis-a-vis him. So in other words, that the Secret Service agents couldn’t be made to testify about Monica Lewinsky’s comings and goings. That argument was not made by Bill Clinton’s personal lawyers. That argument was the institutional position of the executive branch, the Secret Service. That’s the institutional presidents. On the other hand, when Bill Clinton, the man was when Ken Starr demanded that Bill Clinton appear before his grand jury and answer questions. That issue was handled by Williams and Connolly, the law firm that represents Bill Clinton. Got it. OK, yeah. And there are examples of this in every presidency, because presidents have personal interests. I mean, Barack Obama, you know, has book royalties, right. That is not something that the White House counsel handles. That’s Barack Obama’s personal representatives handle that. On the other hand, you know, if Congress wants information from the White House, that is a an institutional concern that the that the lawyers for the president represent now comes along Donald Trump’s vision of the presidency, which we call in the book, the expressive presidency and the fundamental dimension of what makes him so different from every other president is the total collapsing of the personality of the president into the office. The office becomes dominated by the sort of vanity plate elements, the giving speeches, the attacking people, you know, tweeting who’s committed treason and that he really hates Peter Struck and Lisa Page, the rallies. These are the things that that animated his presidency. And when you think of Donald Trump, you don’t think of Mitt, the management functions of the executive branch. You don’t think of the entire agency process in that environment. It becomes extremely difficult to tell whether you’re dealing with the person, Donald Trump or the office of the president of the United States. So which is at real, Donald Trump? Is that the presidency’s Twitter feed or is that Donald Trump’s personal vehicle for self-expression? So if you’re Emmit Flood or Ross Garber and you are one of these guys who believes in defending the office and now the office and the person have completely collapsed into each other, you’re going to start sounding a lot like somebody who’s just defending the man. And that is a creature of the vision of the presidency, which we’re talking about in the book.
S15: Yes, it’s sort of. And I imagine you both have to gotten tired of Psychologizing the man, Donald Trump. But I am curious about your take on the lawyers who Marshall say in the beginning of your book, the lawyers who marshall the defense of the Muslim ban when Trump implemented it? Well, two months after he took the oath, he seems in the book at least you represent him as quite possibly in violation of the constitution right out of the gate. It’s like. You know, a husband that cheats basically on his wedding night. But why did lawyers begin to twist themselves in the same kind of knots we now see from Ciccolo to make sense of the merger of the office and the man?
S11: Yes. I think the travel ban is actually a really great example, both of the phenomenon that Ben was just talking about and about sort of the interaction between Trump’s vision of the presidency with the actual, you know, sort of process of government.
S16: So Donald Trump, the candidate, promised to ban, you know, a complete shutdown of any and all Muslims entering the country until we figure out what’s going on. You know, then then he swears the oath of office and first week in office, he issues this travel ban. And it’s shocking. And the travel ban is shocking in part because one thing that a lot of people had responded whenever they heard, oh, you know, he wants to this Muslim ban or he’s gonna torture people or at all. These promises to violate the law with no process is going to constrain him.
S17: He thinks he’s gonna be able to do all these things, but then he’s gonna have to go through DOJ in the interagency process and D.O.D gonna get a say in the State Department and that’s all gonna water this all down and, you know, and have something that’s, you know, maybe we don’t like as a policy matter. But but is it crazy? And then we got this travel ban and it was crazy. It’s as close to crazy is as the executive orders come. And that’s because Donald Trump just wrote it with a few people write Donald Trump and Stephen Miller. And and they got sort of the white, you know, sort of facial review of getting the getting the language out and they issued it. And then that moment, Donald Trump shows how powerful he is. Right. He’s the head of the executive branch. And and the unitary executive means there’s just one president and all those other of this huge, massive, sprawling bureaucracy, just a bunch of people that are doing what Donald Trump wants to do. And it turns out that that’s really emotionally satisfying to the president and some of his supporters. But the travel ban gets struck down. And so they have to start over and try another one, and then they try and put that one out and then that gets struck down, too, and then they have to do another order. Right. And so if Trump was thinking about sort of as if he was separating himself from the office, if you thinking about himself as a president who was pursuing interests that were different than his personal interests, he might have cared about that. Right. And he might have cared about. Right. How do I go through a process? So this actually takes effect. How do I create language that actually gets the outcome that I want? How do I make sure the various federal agencies that I need to carry this out are actually going to do it in the manner in which I want? But Donald Trump didn’t care about that because that’s not his conception of the presidency. What he wanted to do was express himself, express himself as keeping his campaign promises, as not liking Muslims. And so he just issued this travel ban. And the problem is, is that so then you have this expressive presidency interacting with a system that’s been designed for a traditional presidency, for a president who is carrying out his or her understanding of the interests of the nation, whether we personally agree with them or not. Right. They have a policy agenda. They’ve been elected on. They’re trying to carry out that agenda. And so the problem is, is that this huge federal bureaucracy, the president said to the top and they actually are supposed to be doing what the president wants. And so there’s various ways to respond. You have Sally Yates, who says how now you’re not signing off on this. And so she gets fired. And and that’s what happens when an official of the executive branch defies the president or you have people who sort of try and find justifications. Right. So so they don’t want to go in and lie to the court. But we have government attorneys who are arguing that, well, it’s true. Trump said lots of things before he took the oath of office. But then you take the oath of office, and that is he’s purified and remade. And now he has these very pure intentions. And so this is what the government’s. This is the real government’s motivation, has nothing to do with Muslims, has nothing to do with religion, which, of course, would be unconstitutional and impermissible. Now, it’s about the sort of the president’s national security and immigration prerogatives. Right. And so there’s this pattern that we describe of an all sea attorney who actually eventually resigns. And she writes an op ed in The Washington Post. She talks about how she read a New Yorker article in which the producers of Trump’s reality show, The Apprentice would have to recut episodes because there would be a plan for what was supposed to happen. And then Trump would just go ahead and fire whoever he wanted to kind of go off script. And then what they had to do was they had to go back and recut the footage. So that didn’t look crazy, right? Backfill it all. An air canoe into this former US attorney. She writes that she realized that that was her job as well. Her job was to go back and create some kind of reality that sort of comported with the president’s proclamations. And so we see that play out over and over again and in the very strange and corrosive consequences. And there’s lots of. Forms of responses, but ultimately what it is a sort of a a rejection of a transplanted organ. It’s a executive branch that is trying to function because it’s used to a traditional president. And here comes this sort of profoundly mismatched person. Yeah. Who doesn’t understand the interests of the of the nation or the interests of the office as anything distinct from his own. Doesn’t even recognize there’s a difference. And the interaction is really damaging and in lots of different ways over a long period of time.
S15: The subject of the first chapter of your book is so succinct about what makes a president and really delves into the language of that oath and what the commitments are of anyone who takes it. Does one of you just want to tell us about the language of the oath and what Trump’s done with it? Aside from violate it, yes.
S9: So the oath clause of the Constitution is the only place in the Constitution that uses quotation marks. And this strikes me as symbolically really significant in the sense that, you know, there are. The Constitution does a lot of things. It creates institutions. But it in this one, the area provides a literal script.
S18: It dictates the precise words that transform a person into a president. And it actually maps it out. And that is because the founders took the oath very seriously. There is if you’re going to give one person as much executive authority as the Constitution gives to the president, there is no way you can make that guarantee that that person is going to be a good commander in chief. Right. There’s no way you can guarantee that the person will, in fact, faithfully execute the laws. You can require him to do it, which the constitution does. But there’s no way you can actually guarantee that he will do it. So what’s the closest you can get? And the closest you can get is make him stand up in public and promise to do it. And that is the significance of the oath that it is this public declaration that I will take this role seriously. I will do my best. You know, it’s not a promise to be really good at the job. It’s a promise to do the best you can in good faith. That raises the issue of what is somebodies promise worth and in the founding era culture. You know, which was an honor culture, the idea that you would publicly get up and swear an oath to do something and then not do it was so dishonorable that this was considered a meaningful protection, not sort of not a not a piece of political theater, but a meaningful protection that you would make somebody stand up there and promise to do this. And that’s because they had a conception of civic virtue. And we really underestimate the degree to which civic virtue, in fact, undergirds a lot of the things that we call constitutional law.
S9: It, in fact, depends on people swearing to do things and then actually doing what they swear to do. And so it poses the problem. What happens when you have somebody take that oath who is whatever else you say about him, completely lacking in civic virtue? You can say that that makes him fun, that makes him entertaining. That means he’s a tough ass who’s fighting for us. Right. All the you can transform that in any way. You can say it’s because he’s Cyrus of Persia. You can. You can, you can. You can make it into a virtue any way you like. But at the end of the day, nobody really thinks that Trump is a person who has civic virtue and he exhibits civic virtue. And that is antithetical to the idea of the oath. And it underlies a lot of the pathologies associated with Trump’s vision of the office, that he actually believes that you can swear that oath and it not sort of work upon your soul in some significant respect.
S15: There was a moment yesterday, as usual, I find Adam Schiff both like a an engaging kind of wonk and also quite moving when he talks. And one of the things that he said yesterday that I found really interesting was an appeal to. So we’ve heard a lot of if you were to commit these kind of crimes, you’d go to jail because nobody’s above the law. And that was an angry refrain. And in 2016 of some voters, I knew if I had, you know, used an it used illegal e-mail server, I’d be in jail right now. Right. So it’s like she’s not better than we are. So that’s one of the things is to have people imagine themselves or someone they love as a defendant in this case. Then you can imagine yourself, prosecutor, and get and get really angry like the Democrats in Congress did. And just this guy’s a criminal. He belongs behind bars and the people are the victims. But Adam Schiff, you probably know what I’m going to say. Asked us to imagine ourselves as jurors doing jury duty. And I. Like that was one of the first appeals not to not to emotion or, you know, the idea of a crime with a victim, but to the possibility of civic virtue.
S11: I think what Schiff understands about this trial is that the task for House Democrats is not to do the impossible and convince a sufficient number of Republicans to vote to convict the president, although they can certainly try. The task is to make it as as painful as possible for them. For Republicans to cast the acquittal vote to make it as clear as possible what they are doing. And so I think what he’s really saying is, you know, ignore all this bluster and table pounding and and kind of nonsense on the other side. This is the evidence and this is the choice that these senators are making. And the choice they’re making is this is OK. And it comes back to, you know, in some ways, whenever you write a book like this, it’s sort of it’s this scary thing, the period in which the book goes to press, because you’re like, oh, God, is the world going to prove me completely wrong? And yes, we were able to put in a quick sort of postscript about about the early Ukraine scandal, because we had just enough time to do it. And and all the evidence that’s come out since, it hasn’t proven us wrong. It’s proven us right. It’s proven us perfectly right. Yeah. Because the core of the Ukraine scandal is the president using the powers of his office, not for the public good, but for his own good and doing that over and over again. And so when Schiff says imagine yourself as jurors, I think he’s saying imagine yourself as the hundred and first senator in that room and and imagine the choice you’re making and what you are choosing to ratify here.
S16: Because for a senator to vote, to acquit the president, they can tell themselves it’s because of some narrow constitutional argument about executive privilege or whatever else they need to sort of wrap themselves in. But but what? This is a blunt instrument. It’s conviction or acquittal. And it’s saying this is a person who is fit to remain in office. The way Trump uses the powers of the presidency are tolerable and acceptable. And so I think what Chavez is asking us to do and understand sort of his task is to really clarify that choice as much as possible, both in terms of the overwhelming strength of the evidence. It’s crystal clear what happened here. And also sort of in the in the sense of, you know, look, this is the fundamental choice. And then the significance of that choice, because if we can’t get a Congress to hold the president accountable, then we also need to hold Congress accountable. And so, yes, we have to make a choice about the president. And we also need to make a choice about the people who are casting those votes. And so I think that’s some inviting us to think about ourselves as as their colleagues. And I think as a way to also put the focus not just on the president, but in the ways in which the president did not do the job he swore he would do. But also the ways in which senators are not doing the job they swore they would do and what that means for some reason, this is making me very hopeful, even though, you know, I may be singing a different tune a year from now.
S15: I don’t know if you saw this poll, but. Seventy seven percent of Americans, I think I have it right. Want to see witnesses in this impeachment. You know, at 52 or 1 percent who want to see the president removed from office. So that’s we already have a big chunk there. But 77 percent of us never agree on anything to do with this president. And the one thing we seem to agree on is a certain amount of even procedural ism and fairness that as prospective jurors and I almost looked into how many of voting age have done jury duty in their lives. But there is something profound and solemn about doing that duty. And, you know, it was the same with the subpoenas that defying subpoenas was something that a considerable majority of Americans disapproved of. And I wondered if it was because all of us have a greater gift for solemnity than the president. But at some point, we think we might be either sitting in the jury box and we don’t actually want at that moment to kind of, you know, go bananas and assert ourselves and go off script and be crazy and be fun. That’s not what’s going on. And moreover, if we’re ever on trial or subpoenaed, there just isn’t room for anyone to defy a subpoena. So the idea that like gravity is not binding, gravity in both senses is somehow not binding on this president. I think it’s very galling to Americans. Both stripes. And that makes me somewhat hopeful. What do you think?
S18: You know, on my optimistic days, I agree with that.
S12: I do think, you know, members of the Senate who are up for re-election in the fall are going to have to swallow pretty hard before they vote to not hear the evidence in a case. Having sworn an oath to do impartial justice, as well as their more general oath to preserve and protect the Constitution, which, you know, by the way, by its terms requires them to try this case. And so, you know, I think, look, you can get around it if you have the raw political power to vote to get around it. But at the end of the day, I do think that’s a pretty hard sell to the voters that we you know, we voted not even to hear the evidence having been handed this trial. On the other hand, you know, people like you and Susan and me have been telling ourselves for four years now that this latest outrage, whatever it is, whether it’s, you know, the attack on John McCain for having been captured or the attack on Kizzia Khan’s family, or whether it’s the wall or the attack on Judge Currie, yell, where every incremental step is going to be the thing that the system actually just can’t handle where the law of gravity will return.
S9: And I have stopped telling myself that because I I do believe that there is some point at which that happens. But I I no longer have any sense of where it is. And one of the ideas in this book was to evaluate, you know, not the moment to moment. OK. Is this the needle that’s going to break the camel’s back or you know, but to really zoom out and say, what is the impact like? We don’t know what’s going to happen, but what is the impact of this vision on the institution of the presidency?
S19: And it’s, you know, to actually accept the fact that which maybe I should have accepted about myself many years ago, that I’m not a political analyst and I don’t actually know what’s going to happen in this year’s election. And I’m, you know, less good at reading polls than people who are good at reading polls. And it turns out they’re not as good at it as they think they are. But one thing we can do is look in a serious, thoughtful way about what this vision is and how it operationalize US deployments of presidential power across a wide range of areas. And it turns out, I hope that that turns out to be a pretty enriching way to think about the Trump presidency, or at least it was for us. And I hope it will be for readers.
S14: We keep asking ourselves during this impeachment are being asked to ask ourselves what would happen if this is if this was the president we loved. And I wonder what would happen if a you know, a president president we like to present. We could tolerate more, say a Bernie Sanders decided to use the office in an expressive way, as he’s indicated he might do. Talking about revolution and, you know, the commitment to Bernie Sanders sometimes seems like a commitment to, well, another kind of cult of personality to show down with the current cult of personality in the form of these Republicans. I, of course, think that’s a bad idea. But it is interesting to imagine that Trump has refashioned the office so much in his own image that another president of entirely different politics and temperament could come in and be, as you say, an expressive president. That would maybe be the proof that the transformation has happened. Not that Trump does it again for another four years, but that someone else comes in and does it for four years or eight.
S17: Yeah. I mean, remember, if he doesn’t get reelected, the incentive and the message to future presidents are maybe you can do this, but you can’t be reelected. And so that itself is is a powerful constraint. I think there are more incremental ways we might see it play out in really with any, you know, any new president who might come in. So Trump has demolished all these norms. And so if you want to reestablish the norm, you have to be willing to constrain yourself. You have to care about it and the public has to care about it. So, look, if I was advising a president, I might say man not having a daily press briefing. That is a really good idea. Press are annoying. And whenever you let them ask you questions on camera every day, you know what? Whose crazy idea was this? And, you know, give him a twice a twice a month press briefing and it’ll be a gift. Right. And it would be hard, right, for the press to, you know, or at least for the public that has tolerated it or Republicans who have tolerated it and defended in Trump to say, oh, you know, well, well, that’s not acceptable.
S16: Right. We have to have somebody who who wants to reestablish the norm because because they care about it, even whenever it maybe is not convenient. Or the next president might say, you know, look, Chris. Right. Seems like a perfectly nice guy, but I want my own FBI director who cares about the things I care about and who’s who shares the priorities and the sensibilities that I share. And so, yeah, we had this idea of the 10 year terms sort of this, you know, a little bit of independence for law enforcement. But now you’ve seen the president can fire at FBI director just because he doesn’t like them. So I’m going to come in and I’m going to fire Chris Ryan put in my own person. And that would be an understandable impulse. But the norm and the idea the FBI director serves a 10 year term and that the FBI director is not a mere political appointee would be gone forever. And so, you know, sort of voting Trump out of office is a necessary but not sufficient condition. And so if Trump is voted out of office, I do think we have to ask difficult questions of the next president to say, hey, you know, what are the norms that we care about and what are the norms we care about adhering to and preserving even when they are politically inconvenient to us, norms of telling the truth and norms of recognizing co-equal branches, norms of producing documents and participating with oversight requests, you know, all of these things. And so, you know, Trump has bulldozed all of this. And and that’s why I think we should want to be so thoughtful about who the next person to occupy this office is Yemen and what their thoughts are on the institutional presidency and what it means to be president, because that person is going to play a really pivotal role in where the path moves from here.
S14: I want to try something out on you. It’s just so tempting since I have your both big brains together that get exponentially bigger when you’re talking to each other. And that’s that. I’ve been sort of testing an idea in my head that liberal democracy and market capitalism are not something that we got from God that we need to preserve because we’re so virtuous.
S15: They should be adaptive and they should be able to govern a nation of devils. And there should be some kind of Adam Smith here that even if we’re all out from Monopoly, it’s not the modest special modesty of our ambitions that keep us from getting one, but everybody else’s ambitions and our respect and understanding of everybody else’s ambitions. So the reason that someone rises to the office of the presidency and keeps the oath is not just because they have the honor culture that I experienced at the University of Virginia and that the founders were very invested in. But they’re afraid, right?
S20: Trump has had a singular lead, not follow the rules path. I mean, outlaw, ruthless rule defying and just like health, people keep saying, why isn’t he dead from all his cheeseburgers? There’s also the question of why isn’t he in jail from all his malfeasance before?
S15: And he’s someone that can endure a bankruptcy. He can endure many, many thoughts of prison. He can endure. You know, dozens of lawsuits at the same time. And for most of us, I think, you know, if someone got so far as to take the oath of office and this is what seems to have happened so far, they have found themselves paying taxes, following certain rules, learning their polynomials while in school.
S20: You know, has he ever turned to paper on time? Has he read a book? No. Somehow he managed to slip the knot of virtually every obligation, not just of citizenship, but of not crossing against the light. Usually by the time you get to the office of the presidency. You are at least afraid of making gigantic mistakes. And this is he Trump is like one of those defiant teenagers where you, like, threaten them with everything you have and they still don’t care.
S15: They still storm out and go party. His recklessness is something I can’t imagine. All right. I have to hope we won’t see again in someone who makes it all the way to that office.
S9: So I agree with that. As the person who coined the term malevolent tempered by incompetence. Yes. You know, the what you’re describing is the incompetence. It’s the you know, this is somebody who really wants to do all kinds of bad things, but is limited by his own recklessness, his own extremity, his own, you know, personality peculiarities, his own impulsiveness and his propensity to surround himself with people who are. Yes, men.
S12: If you imagine somebody who was better at it, you’re imagining a potentially more, not less dangerous actor.
S9: You know, all the malevolence and a high degree of competence is a scarier figure to me than is Donald Trump. I agree with you that that person might not be as flamboyantly awful, but the person might be able to get done a much higher percentage of the things he or she wants to. And that is. So, you know, that’s what you’re describing is a complicated proposition to me.
S13: Most of the reason we keep our promises like the oath of office is because you want to be able to get loans in the future. You want to be able to, you know, keep your spouse around. You want to be able to preserve the respect of your children. All kinds of just animal needs that keep you from lying. The man’s good name kind of thing, you know, is this great asset, not because he’s so intrinsically virtuous, but because he can cash in on it in social and public space.
S16: I think what this gets at is the notion of civic virtue and the oath being an agreement to participate in a system and to participate by the rules of that system. And that if you have people and a president in particular and sort of the highest office that doesn’t agree to those rules, then the structure will collapse. And so, you know, Ben and I spent a lot of time in the course of researching this book, sort of reading about founding attitudes and how people thought about sort of it and then the contrast to Trump’s conception of his office. And, you know, there’s an Edmund Burke quote that we put in the book that reads, Men are qualified for civil liberty and exact proportion to their disposition to put moral chains upon their own appetites in proportion as they are more disposed to listen to the counsel of the wise and good and in preference to the flattery of natives. Society cannot exist unless the controlling power upon will and appetite be placed somewhere. The less of their it less of it there is within, the more there must be without. It is ordained in the internal constitution of things that men of intemperate minds cannot be free. Their passions forged their fetters. And I actually think that gets to something about Donald Trump, which is that this system doesn’t work. It doesn’t work over the long term. He doesn’t hold unless you have people in the offices that respects the institution, respect the rules. And so in the short term, they can empower themselves by by not following them and by not being constrained in the immediate end by saying, well, norms are just like your opinion, man. And so I don’t really have to do that. But eventually it will collapse because it is that agreement. Thus the compact that allows this to endure. And so I think that’s one of the things. No, Ben and I talk about the the traditional presidency needs a defense because it is something that has served lots of people, of lots of different political persuasions. Well, over a long period of time. It has served our national interests well. And so this need to go back to agreeing to participate in this system, agreeing to share a pre-political understanding of what exactly we’re doing here. You know, that is really, really critical. And that even if everybody else kind of has that feeling, you know, that that’s what they think they’re doing. If you have a president of the United States who doesn’t and you let him stay in office and you let him be re-elected to office, the rest of it just isn’t going to matter.
S10: It is extremely interesting in your book to discover that there just are very few individuals, if any, who can embody and make their own. The traditional presidency. I mean, maybe that’s by definition impossible. But, you know, we we sort of hoped that Mueller would take the stage and somehow be a Hollywood personification of the institution. And, you know, some others more tragically thought that might be Bill Barr, that he would make the case you make in this book that these things are worth preserving, whatever our politics, this traditional institution.
S9: I’ll confess something to you. Virginia, the person I have hoped would embody the traditional presidents was Mike Pence, not because I have any admiration for Mike Pence, which I do not.
S18: My enthusiasm, I assure you, is altogether under control, because if I were vice president under in this situation, I would try to embody the traditional presidency by staying the hackle way, keeping distance and subtly sending the message, hey, there is an alternative and the alternative is something like normalcy. And Susan and I at one point even wrote a piece kind of advising Pence to behave that way, that, you know, there’s a chance that you’re going to be president someday. And because this guy’s not going to make it through his his term in office. And you should be modeling a plausible alternative.
S9: You know, at the end of the day, only only a president can truly model the traditional presidency. And and I actually think our last two presidents in very different ways. You know, George W. Bush is a polarizing figure, or at least was. But his behavior in the presidency at a personal in terms of his comportment of the office was exemplary, as was Barack Obama’s. You know, you can say all kinds of things about Barack Obama’s policies or whatever. And lots of people hate him for all kinds of reasons. People’s sense of his not having the decorum of the office was reduced to the color of his suit.
S21: Yes, one point. I mean, he is somebody who actually modeled that office rather beautifully. Yeah. You don’t have to look very far back before we have people who represent what the traditional presidency is. And we have to really decide as a society whether we want to fight for it.
S10: I hope it fights for itself. I hope that will all be so shaken by this as well.
S14: All the office seekers that they won’t do this again. What’s the best sign that this presidency that that the presidency might not be fully unmade by next year when tramps voted out, fingers crossed the best sign.
S19: And I don’t want to say when, because I think we all talked in the language of when four years ago we made his re-election unthinkable. You know, an incumbent president always has a chance of re-election. Full stop.
S9: But the best sign that the traditional presidency isn’t dead is that the one Democrat who proposed a run on being the counter Trump is in jail. And that’s Michael of NRT, young of the. None of the contemporary Democratic candidates are running with a. We need our own Trump. They are all running on policy ideas. One, you know, it you know, do you like Medicare for all or do you want to spend who want it or, you know, what should student debt be like? What should our policy on taxes be? They’re running on. None of them is running on the. Because me because. Because. Whittis because Hennesy you know, and that means they are all running at some level as reflections of the traditional presidency.
S13: Then that is a fantastic point about Michael having he actually and not just a one liner. I’ve got to think about that one. Susan, any parting words? Are you feeling hopeful that this nation, so conceived and so dedicated, can long endure right now? I hope you are.
S16: I am hopeful. And actually it’s private for the reason that’s depressing a lot of other people. And that’s the impeachment trial. We have a whole chapter in the book about investigating the president and how. Long before Donald Trump came along, you know, Congress was sort of outsourcing its obligations and responsibilities to special counsels and independent counsels, and it really had lost the muscle memory of what it meant to hold the President of the United States accountable as an oversight matter. And then Ukraine came along and there wasn’t going to be a special counsel and there wasn’t going to be an independent prosecutor and none of that stuff was gonna happen. And so Congress said, huh, I guess we’ll have to do this ourselves. I guess we’re gonna have to issue subpoenas and call witnesses and conduct an investigation and tell the public what we found. And that’s how the system’s actually supposed to function. That’s what’s supposed to happen. And so I have sort of you can sort of maybe it’s Pollyanna ish button. But my optimism and my real optimism is that what Donald Trump does is deliver such a shock to the system that it actually starts functioning more akin to the way it is supposed to, because the separation of powers and the function of the presidency before Donald Trump wasn’t perfect. And in fact, it was held together by the basic decency and civic virtue of the previous occupants. And betting on people being good and keeping their promises isn’t a great way, you know, to hold an entire society in a system of governance together. And so my hope is that Donald Trump will be an aberration, but an aberration that we learn from the other branches, learn from that the judiciary is, you know, sort of a willingness to stretch executive deference beyond its breaking point and of Congress willing to sort of sit on its hands until the executive branch tells it what it’s willing to be overseen about. And and the the legislative authorities it’s willing to respect when it feels like it. You know, that actually this can be the sort of shocking occurrence that actually we move forward from this stronger and healthier and sort of voter.
S11: No more perfect to the extent we’re gonna harken back to the founding. And that’s sort of my optimism might seem foolish in a few months and in November 2020 and we’ll see how many of our fellow citizens agree or disagree with us. But that is my hope.
S14: There are so many reasons I commend to listeners unmaking the president, but among them is that it is. I know we all love these books about the president’s outrageous behavior behind closed doors, but this is his outrageous behavior that might have lasting effects on the institution of America. And it’s every bit as outrageous as little things he says to Rex Tillerson.
S13: It’s also a page turner that is a little bit shorter than it looks because it’s so well-researched. You know, it has a big chunk of footnotes in the end. I read this in two sittings and gulped it down like a thriller. Susan Hennessey, Ben Whittis, thank you so much for writing it and thanks for joining me on Trump GUEST.
S22: Thanks for reading it. And for the kind words about it. And thanks for having us. Thanks for having us.
S23: That’s it for today’s show. What did you think? Come to Twitter. We’d love to hear from you. I’m at page 88. The show is that real Trump cast. Our show is produced by Melissa Kaplin and engineered by Merrett Jacob. John de Domenico is, as always, our voice of Donald Trump. Find him on Twitter at Johnny D. Twenty three. I’m Virginia Heffernan. Thanks for listening to Trump cast.
S24: The economy is great. Everybody has a job. And it’s even better than that because some people have two jobs. Three jobs for jobs. I do it of their domestic job. I will always. The SEC did a bad bet because frankly, that’s the only one I’m really familiar with. The Second Amendment is about duds. Does that makes it so simple? All the other bad bets are so good fusing. I found the best way to deal with the impeachment is the la la defense.
S25: La la la la la la la la la la la la la la la. I don’t want to hear it.