WTH is going on with impeachment (round two)? John Yoo on the repercussions of trying Donald Trump
Episode #89 | February 9, 2021 | Danielle Pletka, Marc Thiessen, and John Yoo
Danielle Pletka: Hi, I'm Danielle Pletka.
Marc Thiessen: And I'm Marc Thiessen.
Danielle Pletka: Welcome to our podcast, "What the Hell Is Going On?" Marc, what the hell is going on?
Marc Thiessen: Well, guess what? We're a couple of weeks into the Biden administration and we're impeaching President Trump again. That's right, we've got the trial of Donald Trump beginning this week in the United States Senate and we are in such unprecedented constitutional, legal and political ground: the first time a President of the United States has been tried after leaving office. There's a huge debate within conservative legal circles, real disagreement about whether or not it's constitutional to impeach a former president once he has left office. The Senate voted, with 45 Republicans voted, that it is not. I'm sure some of them genuinely believe it. For others, it's a great safe harbor not to vote to convict I'm not even taking into account what he did because this is just an And it absolves them of the need to weigh in on the horrible things that happened in the US Capitol on January 6th. I think others truly believe it. There are really very interesting and weighty legal arguments on both sides but regardless of that, the trial's happening. What do you think Dany?
Danielle Pletka: Well, I think this is all going to come down to a case of political theater. We spent a great podcast with Andy McCarthy talking about why he thought that actually convicting of impeachment after leaving office was legal. We're going to talk a little more about others who think that it's not constitutional and at the end of the day, I don't think any of that is going to be relevant. I think what is animating everything, as indeed it did throughout the entire Trump presidency, is politics. In this case, what's really going to give energy to a lot of this is Donald Trump's desire to stay at the center of the Republican Party and to prove his hold over the senators that are sitting Republicans in the US Senate right now. I'm curious to know what you think. Do you think that Kevin McCarthy for example did the right thing by first condemning the president and then going down to Florida and making nice with him?
Marc Thiessen: Oh my gosh, no. Look, he was half right the first time when he went to the floor of the House right after the insurrection that took place and said that the president
2 bears responsibility for what happened, but he still voted to challenge the electoral college results and so did, I can't remember, I think it was 136 Republican members of the House did after that happened. Then, after taking that courageous stand, he's been backing off it ever since and he backed himself all the way to Mar-a-Lago for a photo op with the president.
Danielle Pletka: It is remarkable as well because the Republicans are playing exactly the game that Nancy Pelosi wants them to play. That is that they are wrapping themselves up with Donald Trump rather than separating themselves from him. And I ask myself, "What the hell is wrong with them? Why is that that the Republican Party feels so bereft of ideas that it has to huddle under the Donald Trump tent?" I have no idea, do you?
Marc Thiessen: Well, because he's still very popular with the Republican base and a lot of these people, as we know, especially in the House where, thanks to gerrymandering, the districts are very, very divided. Most districts are not competitive. They're very divided among very rabid Republicans and very rabid liberals and that's why most incumbents get reelected. Their constituents are very pro-Trump and keep in mind, their constituents for six weeks were fed the big lie which is that the election was stolen. The President of the United States said the election was stolen. And the media that has no credibility with them said it's not true. And one of the things Liz Cheney did is she circulated a memo to the House because there's this myth out there that none of the court cases ever, they were just didn't accept it on grounds of standing. They never actually addressed the substantive issues.
Marc Thiessen: She circulated a long memo to her House colleagues before the incident on Capitol Hill, on January 3rd saying, "Actually the courts did address the substance of it and not a single court found that any of these cases had any merit." Republicans have been fed the big lie and they may not like what happened on January 6th, but these Republican members want to just walk past it. We can't walk past it. We can't ignore the fact that a Confederate flag was being waved in the rotunda of the Capitol, something the Confederacy never accomplished. We can't walk past the fact that there was a mob with weapons and zip ties running around, looking for lawmakers to arrest them and do God knows what to them. We can't look away from the fact that they could've come within moments of seizing the electoral votes. That a mob was trying to stop Congress illegally, forcefully from carrying out its constitutional responsibilities to count and certify the electoral votes. This is one of the worst things that's happened in Washington in our lifetimes and we just can't avert our eyes, I'm sorry.
Danielle Pletka: This is very interesting though. Let's separate out these two questions because I agree with everything you've said up to now. I'm not giving you a carte blanche for the future, however.
Marc Thiessen: You know how we have the recording at the beginning of everyone saying, "What the hell is going on? What the hell's going on?" I'm going to pull together a recording, I'm going to have Alexa help me. We're going to pull together a recording of all the times saying, "Well, I agree with you Marc. I agree with 100% of everything you said. I agree with you." You agree with me a lot, Dany.
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3 Danielle Pletka: Don't you share my dirty secrets with our listeners. Anyway, I'm trying to make this intellectual point, which is that the other disservice that Donald Trump has done to us is that he has actually put us in uncharted territory that forces us to either bend the law, bend the Constitution, or allow what happened to pass without any repercussions for the leader of this attempted insurrection at the Capitol. That's the legacy of this that is even worse. All of these things have happened, all of these things are terrible, and we can detail each element of it, but at the end of the day we've got to figure out what to do. The Congress' answer is impeachment, and I don't blame Congress for looking to that answer because that is the correct congressional response to a president who seeks not to carry out his duties under the Constitution.
Danielle Pletka: Then we get to this sort of insidious question of whether the Constitution really allows the president to be tried once he has left office. That's the discussion that we are looking at today and we have a terrific guest, a recidivist guest with us. But before I introduce him, I'm just going to tell everybody up front, we talk about this, I think that there are persuasive cases to be made on both sides, but at the end of the day this is not a very satisfying outcome and that is for the United States and for our process of governance a very unpleasant fact.
Marc Thiessen: Yeah, there's two things. There's the legal and constitutional question of whether you can proceed and whether it's constitutional to proceed with the trial, which there's disagreement about. Then there's the practical case of whether it's prudent to go ahead with a trial once the president has left office and all the rest of it. They are both incredibly tough questions. We're about to talk about the legal so I won't go too deeply onto the constitutional side, but even on the practical side... I believe that Donald Trump committed an impeachable offense. I've said this in our podcast, I've said it in my Washington Post column, we agree on that. I'm not sure that it's prudent to go ahead with the trial. There are reasons for that. One, you can see from that vote that I referenced at the beginning, he's going to get acquitted and we all remember the picture after the Ukraine impeachment, which I thought was wrong and I supported him during that of
strengthen him politically.
Marc Thiessen: The counter argument that the Liz Cheney's of the world make is that what we were just discussing which is that it's shocking how quickly conservatives want to go past what happened on January 6th, that we want to avert our eyes from this. A trial would force the country to confront what happened. We will watch the video of that metropolitan police officer being dragged down the stairs and beaten like a scene out of Blackhawk Down and Mogadishu. We will see these people desecrating the inner sanctum of our democracy. Rifling through the desks in the Senate, looking for the Electoral College votes, zip ties in hand looking for members of Congress, people marching and saying, "Hang Mike Pence." We will also see in a trial simultaneously what Donald Trump was doing while all this was happening because when Mike Pence was in hiding for his life, Donald Trump was tweeting that Mike Pence doesn't have the courage to do what's right. He was pouring gasoline on the fire. Kevin McCarthy, other members of the house, were trying to reach the White House, trying to reach the president. He wouldn't take their calls, he wouldn't call off the crowd, and he
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4 poured gasoline on the fire. It was not until over three hours into the incident that he finally issued that video where he said, "Go home peacefully."
Marc Thiessen: happening and refusing to pull back the people who were doing this in his name. There's an argument to be made that the country needs to confront that reality and that we should have a moment as a nation where we go through that and see all of that. It's a very tough call. I'm not 100% sure where I stand on it. I think there have been good arguments made on both sides. I'm also not 100% sure where I stand on the constitutional issues which we're about to talk about with an incredible guest.
Danielle Pletka: John Yoo is our guest. He is the Emmanuel Heller professor of law and director of the Korea Law Center and the California Constitution Center at Boalt Hall, the law school of the University of California at Berkeley. He's written extensively, I'm not going to list all of John's books. But most important, his most important credential, other than being us on repeated occasions is that he's also a scholar at American Enterprise Institute. It's wonderful to have him back.
Marc Thiessen: And a good friend. Here's John Yoo.
Marc Thiessen: Well John, welcome back to the podcast.
John Yoo: Hey, thanks. It's great to be back with you guys from AEI West out here in anti- vaxxer central, California, San Francisco.
Marc Thiessen: We'll have to talk about that on a future podcast, but we're here to talk about impeachment and particularly the impeachment of a former president. This is an issue that there are people who we all like and agree with on the right who vigorously disagree over whether it is constitutional to impeach a president after he's left office. Could you just lay out the arguments for and against? What are the two sides arguing on each side?
John Yoo: First, Marc and Dany it's great to be back with you and this is a close question. In law we use this unfortunate word equipoise or dubitante where it's so finely balanced, almost anything can cause you to go one way or the other. Let me give you first the case of the people who think you can't try a former president. That's a view held by I think Judge Mike Luttig, Ken Starr, Alan Dershowitz, Richard Epstein have all been out making this argument. Their claim is simply based on Article Two of the Constitution where it just says the president, vice president and all civil officers in the United States shall be removed from office on impeachment. It doesn't say former president, former vice presidents or former civil officers. It just says the president. That, according to a lot of people implies
John Yoo: Now, the people on the other side, many of whom are editors, or National Review are the ones I've been arguing the most about this. They would say, look at the constitutional text in Article One where it talks about the House impeaches. No one doubts that the House could impeach because President Trump was still in office while the House impeached. Then the Constitution in
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5 Article One, which is where Congress' powers are set out, says the Senate shall have the power to try all impeachments. That's it. That means if the impeachment was good at the time the House did it, then the Senate has the power to just try them. Doesn't matter if they're still in office or not. I think that's pretty close. I think of these cases the thing where conservatives are different than liberals is that we don't ask, "Well, what would be a good idea?" We go back and try to look at what the founders thought. This is where I sort of fall on the, I don't often do this. This is where I fall on the Dershowitz side, or the Libertarian side or the Richard Epstein side, which is that I don't think the founders wanted to incorporate the type of impeachment that the British had.
John Yoo: If you went back to ye olde ye England, the British would allow impeachment of private people, not just officials. They also allowed impeachment where if the House of Commons indicted the House of Lords tried you and convicted you they could impose criminal penalties up to and including the death penalty. Actually, that would really focus Trump's mind.
Danielle Pletka: I was about to say. That sounds like something I could sign up for.
John Yoo: Could you imagine showing up in the House of Lords and Dany Pletka is sitting as the trial judge? I would just concede right there and give up. I would plea bargain right away.
Danielle Pletka: Absolutely. Hang them early and often.
John Yoo: That's one piece of history then the second piece of history and then I'll stop is that if you go back and look at the state constitutions of the revolutionary period between 1776 and 1787, some of them say you can impeach officers after they have left office. Then other state constitutions don't. My read of that and again, this is so close, but my read of that is well, if the founders knew how to say, "And you can try former officer too," and they said them in some state constitutions, but they didn't in the federal constitution then we should assume they left it out on purpose.
Danielle Pletka: John, there are a whole series of contextual questions to ask and questions about the intent of the founders, but at the end of the day I think for a lot of us this is going to end up coming down to a political read. One of the most interesting things you've said to me that bridges that gap a little bit is this notion that if in fact the Senate can convict after the president leaves office, it basically leaves former presidents, and all former officials beholden to the Congress for their entire lives and you argue that that causes a separation of powers problem. Go into that, because I think that's actually a practical issue that's very interesting.
John Yoo: Yeah, you say it's a political issue, but I actually think it's a constitutional issue as well, Dany, in that if you look at the Constitution it is remarkable in creating a presidency. Most of the state constitutions at the time had very weak executives because of the reaction to King George III and so on, and what people forget or maybe never even knew, particularly out here San Francisco where we have struck Abraham Lincoln off, Thomas Jefferson and George Washington off our elementary schools, is that the Constitution actually creates a very strong presidency. There's a desire to make it independent, as you point out, Dany. If
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6 you gave the Congress the ability to impeach not just current officers, but all past officers of the government, that's going to increase Congress' hold over the executive.
John Yoo: One thing we know, despite all these arguments we can have about how ambiguous the constitutional text is, one thing it's clear the founders wanted to do was to make the president independent from Congress. That's why they rejected the idea that Congress should pick the president, which was proposed actually and made it fairly far along in the Constitutional Drafting Convention. That's why they knew that to make it too easy to punish presidents and officers would give Congress too much power over the executive branch so that's why they put in a 2/3 requirement to remove presidents. That's why they made the chief justice the trial judge for presidents and I think in the end, as you say Dany, that's why I think they would've resisted the idea that they can forever have essentially power over every official who has ever served in the executive branch. Because to them, maybe it's not true today, but to them reputation was everything. Even if you left office many, many years ago they would've hated the idea that Congress could go besmirch your reputation by impeaching you and saying you had dishonored the country in some way.
Marc Thiessen: I want to ask you a two-part question. I'm going to ask you the first question first and then follow up. Do you think that questions of impeachment are subject to judicial review because I think there's two principal cases where an impeachment has been brought to the courts and in both cases, they were both judges who challenged their impeachments, and the courts concluded that impeachments were non-justiciable political questions. Do you agree with that? We don't have any Supreme Court precedent on this.
John Yoo: Marc, if you were in law school, I would give you an A for your answer, but I would fail you on your pronunciation of legal words. You would never make it as a lawyer.
Marc Thiessen: Damn.
John Yoo: You mean non-justiciable.
Marc Thiessen: Non-justiciable. There you go. All right. Non-justiciable.
John Yoo: No but I have to give you an A on the substance because that's exactly right on what the Supreme Court held. There's a case called Nixon versus United States in 1993. This is not Richard Nixon, but I have a rule that has never been broken which is anytime a Nixon makes it to the Supreme Court they always lose. Generally, unanimously. And this Judge Nixon did lose unanimously and this is interesting because some of this was floated for Trump. He was impeached and convicted. He was tried by a committee of the Senate. All three of us have worked in the Senate, right? We know that they don't want to sit there and run a trial for weeks. What they did, of course, is they created a special committee to try Judge Nixon. He said based on that text, the Senate tries all impeachments. It has to be the whole Senate. Some committee doing it is unconstitutional. He actually went all the way to the Supreme Court and the Supreme Court said the way the Senate tries the case is non-justiciable because if the Constitution says
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7 the Senate shall try that means only the Senate gets to decide how to run the trial and the Supreme Court, the federal courts are ousted. They're not allowed to interfere.
John Yoo: Then it's interesting, the founders actually considered initially having the Supreme Court try impeachments and they changed it because it created an obvious conflict of interest. Now, the interesting thing is that there are many commentators out there who I think are reading this Nixon case too broadly because the court says how the Senate tries the case is non-justiciable, but what it doesn't say is that their doors are closed to challenging whether it's appropriate to impeach someone at all. Not how you try it, but whether you can try it. Let me give you this example. I think everyone agrees on this question that the Congress can't impeach private citizens who have never been in government, which is actually something the British used to do.
John Yoo: Suppose Congress said, "We're not just going to impeach Trump or Nixon, we're going to impeach people who are friends of-"
Marc Thiessen: John Yoo.
John Yoo: Yeah. Never been in office, or Thiessen or Pletka, right? No, they say, "We're going to impeach everyone whose connected with the What the Hell Podcast." It seems to me that Nixon does not foreclose you or Dany from going to the about how the Senate tries us at all, this is just whether they have any power over us at all. I think that's something Trump might actually consider and try if he had any lawyers that could represent him. Right now, the merry go round just threw off the last team and now a new team's jumped on.
Marc Thiessen: Then the follow up question to that is, you're basically saying that it hasn't been, up until, there hasn't been precedent for the Supreme Court questioning an impeachment, how it was carried out, but that's possible.
John Yoo: It's never happened.
Marc Thiessen: One would think that the precedent of Senate's actions would then sort of govern it unless the Supreme Court ruled otherwise. The two cases that suggest that there is this power is first the case of Senator William Blount in 1797 who was impeached after he was expelled by the Senate, impeached by the House and then he challenged-
John Yoo: He deserved it because I think he shot and killed somebody.
Marc Thiessen: He challenged it on the grounds that one, he was no longer in office, but that he wasn't a civil officer under the meaning of the Constitution and so the Senate agreed. They took up the case but then they voted separately and said, "He's not a civil officer so therefore..." but they never ruled on that, but they did take up the case.
Marc Thiessen: The other one was the case of Secretary of War William Belknap, who the Senate
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8 voted 37 to 29, I'm looking here, that the respondent is amenable to trial by impeachment for acts done as Secretary of War not withstanding his resignation of said office before he was impeached. The House actually impeached him after he had resigned, so unlike the Trump case. Do you think that was an unconstitutional impeachment and does that precedent sort of stand unless it's challenged and the Supreme Court rules otherwise?
John Yoo: Well, that's a good question. We're all three Senate alums so we know the Senate works by tradition and precedent, and these questions have never been faced by the courts. As you notice Marc, both times the Senate acquitted Blount and Belknap so the only way it would get to the court is if they had been convicted, like Judge Nixon had been.
Marc Thiessen: Trump's really going to get acquitted, so he won't be able to take it to the court.
John Yoo: Yeah, unless they try this 14th Amendment thing which we could talk about later. The only way to really challenge this in court, you're right. The Senate precedence will govern until there's a chance to challenge the court. It's interesting, Trump could try to file a writ of habeas corpus and just preclude the whole proceedings, but I doubt he's going to try that because it sounds like he actually wants to have a forum to re-litigate the election on the floor of the Senate. The Senate's offering him unlimited TV time here. Or what would normally happen is he would have to be convicted and disqualified from office. Then he would have to win office in an election and then say in court, "My disqualification is no good." That would be the only way he could get into court, I think.
John Yoo: By the way, I should've mentioned, people who argue in favor of holding the trial
disqualification still means that you could try former officers. Although people on disqualification, that suggest you have to be in office when you are tried. I don't think the disqualification idea solves the question one way or the other.
Danielle Pletka: John, that was the argument... We had Andy McCarthy on from National Review and Andy made the disqualification argument, exactly that. Basically, the removed from the political process, if you will. Here's the question from me, and this is the gray zone that we're all talking about and that's why I talk a little bit about the politics. You argue, and a lot of people have argued, that there remains a remedy in the case of Donald Trump in the sense that if in fact that Congress believes that he committed a criminal act that, in fact, he can be tried by the courts. Now, I think most reasonable people understanding that all of us believe, I think you included, that he committed an impeachable act in inciting his followers to invade the Congress and try to overturn the counting of the electoral votes... But in fact, most legal analysts believe that he probably didn't actually break the law, that his language was ambiguous enough that he in fact didn't exhort them to do exactly as they ultimately ended up doing.
Danielle Pletka: That he used the word peaceful, yada, yada, yada, yada and therefore because it doesn't rise to that standard, it really isn't a matter for the courts. It seems to me
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9 that we have a real problem here, which is that we have somebody who is manifestly unqualified and who has besmirched the office and abused our democratic processes, something that theoretically another branch of government would address, but that in fact the law is not equipped to address. I Okay well the voters can we're in a very different environment in which the information that voters have isn't exactly pristine. What do you do in this case?
John Yoo: This is a question that the living constitutionalist, not that I'm accusing you, Dany, of being one because that's dirty words, fighting words, fighting words-
Danielle Pletka: I am living, I am living but that's about it.
John Yoo: This is the living constitutionalist way to think of it, which is today with modern political science we know, we look at other countries and we see, there's lots of bad things executives do. There should be a range of different things, like in a parliamentary system you could have a no confidence vote and remove the prime minister when they don't have the political support of the majority of the Congress. You have a range of things, sanctions you can impose, like you said. Basically, what you're saying Dany is there's got to be something in between impeachment and criminal prosecution to handle presidents who have disgraced the office, have harmed the country but you can't prove it in a court with a jury as a criminal violation.
Marc Thiessen: Or it's a political crime, what Hamilton called a political crime versus a criminal offense, right?
John Yoo: You'd say can't we do something about that with the constitutional text being so vague, whereas I think originalists like me would say the founders didn't think of all this stuff. They only thought of impeachment or criminal prosecution, and, I think this is the case, they never thought of someone like Trump ever becoming president. Fame and reputation didn't matter. The desire for public service was not as strong. There's a great story, if I could tell one, where Hamilton, Madison and this is not like rabbi, priest go into a bar. It sounds like one.
Marc Thiessen: They go into a bar. Hamilton, Madison and Jefferson go into a bar.
John Yoo: This is a true story. Hamilton, Madison, and Jefferson are having dinner in Philadelphia. They had a dinner where they resolved where the Capitol was going to be located. Then after dinner, this is a kind of after dinner talk, I think Jefferson's such a bore. Anyways, Jefferson says, "If you could be anybody in history, who would you be? Who do you admire the most in history?" I believe Caesar." The reason we know this, we believe this to be true, because of course Jefferson, being Nixonian in his paranoia immediately ran to his study after Hamilton left and wrote this down in a memo. Jefferson invented the memo to
John Yoo: Why did Hamilton say this? Because Hamilton said because what causes people to go into government at all? Why do any of us, you, me, you guys, we've all
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10 been in politics, why do we do it? He said, "The desire for fame, of reputation is the leading you. They never thought someone like Trump who doesn't care about historical reputation, and so if you have someone in office who's very self-seeking a lot of the restraints that Dany's talk removed from office and I'm disqualified? I don't care." Disqualification from office to the founders was the most humiliating thing you could do to someone because you're saying you are unfit to be a member of the government. In fact, they thought just impeaching someone and convicting them itself was so humiliating, that would be a big incentive.
Danielle Pletka: If only.
John Yoo: Yeah, as you say Dany, but if you don't care about that on your reputation then impeachment becomes a very weak guide. My view is just that I think you're right Dany there's this gap in the Constitution about what to do with someone who doesn't care about being impeached in terms of their historical reputation, but hasn't done something as bad as a criminal violation because I agree with you, I agree with Andy. I think the House charged the wrong crime. As Marc says, they could've charged a more political offense like trying to stop the Electoral College from meeting and counting the votes but instead they charged him with incitement, which he just didn't commit it. He did a lot of bad things, but he did not commit incitement.
Marc Thiessen: He could've committed it in the political sense not in the criminal one.
John Yoo: Yeah, but they didn't charge him with that. They charged him with incitement to insurrection. I don't think these guys truly were insurrection. I think they were a mob, and I don't think that he committed incitement. Insurrection is the confederacy not the proud boys running around in camouflage, it seems to me.
Marc Thiessen: Well, let's get into that in a minute.
John Yoo: From a criminal law perspective, from a criminal law perspective.
Marc Thiessen: You mentioned that the founders thought that disqualification was the worst thing that could happen to you. Let's talk about some of the practical objections to not allowing to impeach a former president, which is that if resignation or termination of office prevents impeachment then it basically nullifies the disqualification clause because you can just avoid lifetime disqualification by simply resigning your office and then you can no longer be tried. What it does is it incentivizes wrongdoing on the part of officials who can just hide the wrongdoing until right before they're out of office, or resign and preempt themselves from being tried in the Senate by stepping down from office. We have a case now when most people like when we lived in the age of shame, to take Dany's practical question, where shame actually mattered. I do not put it past the possibility that Donald Trump could be the Republican nominee in 2024. His support in the GOP is large, and I don't put it past him that he could recover from this and win the presidency back.
John Yoo: Yeah, like Nixon should've run in '80.
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11 Marc Thiessen: Remember the old stickers like he's tan, rested, and ready? Nixon '84 or Nixon '92, Nixon '96.
John Yoo: You're right. I think you're falling into this trap of can't we do something with the constitutional text and stretch it a little bit because we have a failure. Impeachment is not a good system.
Marc Thiessen: You're revoking my federalist card.
John Yoo: Impeachment is this weird 18th century bizarre tool. The British stopped impeaching people I think around 1815. They stopped doing it almost right away Hamilton's idea to put it in the Constitution apparently. I think you're making the same claim as Dany was. Because impeachment is so imprecise a tool. It doesn't get most of the cases we want to use, for example someone who resigns early or someone who gets away with something at the end of their term.
Marc Thiessen: I'm asking why did the founders put the disqualification clause in there if they meant it to be nullified? The existence of a disqualification clause goes to the argument that maybe you can impeach somebody after because the remedy is not simply removal from office, it's disqualification from future office and so then why would they create a mechanism that they then nullified by the way they wrote it?
John Yoo: I went and looked. If you were right, you would expect to see them talk about removal. Everyone agrees, removal is the most important part, to get people out of office who are harming the country as quickly as possible. So you would expect to see in the founding debates a removal and disqualification talked about separately, but they always say removal and disqualification together as a tool rather than some people want to do removal, some people want to do disqualification, let's amend it and include them both. You don't really see that. So, to me it means that they thought there were some people who were so dangerous, you'd want them out of office right away and then never allow them into office again. Like in criminal law, you sentence somebody for burglary or something and you could say you can get a term of years and a fine. And the judge has the discretion to give you the fine, give you the term of years, both, one or the other. I think that's what the founders had in mind when they used that phrase.
John Yoo: What seems hard to me is to have everything turn on that phrase disqualification, to open up having every former official ever be subject to impeachment. I still think it bears that much weight.
Danielle Pletka: Well, I feel quite persuaded we're not going to resolve this question on this podcast, but it is kind of interesting because all of this is focusing around the person of Donald Trump and even when you have unbelievable agreement about Donald Trump, you still have political disagreement about how to move forward. That's how polarizing a figure he is, but it is interesting if you separate Trump out from this that in fact there have been judges, in particular, who have been removed but not disqualified. My favorite example of course is Alcee Hastings, or as he prefers to be known, Congressman Alcee Hastings who was
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12 impeached as a judge, but was not disqualified from seeking future office and in fact is now a member of the House of Representatives supping at the taxpayers trough, unbelievably.
John Yoo: I think he's in the House as a member of the Judiciary Committee, so he gets to vote on other people's impeachments and removal from office. There's nothing so great a conflict since Aaron Burr was the trial judge for the impeachment of a Supreme Court justice right after he shot Alexander Hamilton.
Danielle Pletka: Basically, what we are saying is there must be some way in our system that Donald Trump can't get away with this. Of course, the answer is, well, you know, the system dictates that. Okay, so how should we fix this? Understanding that Donald Trump is probably not the last character like that to run for office. How can the United States systemically better arm itself in the future to preclude the possibility that we have yet another scofflaw in the White House?
John Yoo: That's a great point Dany. That's the perfect question - what do we do? Let me just pause before I answer that and say that it was still possible to try Donald Trump while he was president. The House sat on the impeachment. They didn't hand over the impeachment until after Trump had left. They had several weeks. They had 14 days to do the impeachment and the trial and instead they held the impeachment. It's almost like they wanted to do it deliberately once he left office.
Danielle Pletka: That's right.
John Yoo: They still had time. Really the case is really of someone who almost commits the violations right before January 20th, and as we know, because we've talked about this case with Nixon with Marc, the Senate could've had a one-day trial if they had wanted to and the Supreme Court would not have interfered. Almost the politics of it got the better of the people who could have punished Trump. What do we do? Yeah, my initial instinct is that the voters can achieve the same result as impeachment. They removed him from office at the November elections and then they can disqualify him from office by never electing him again. I take Marc's point that his support in the Republican Party is still quite powerful. I think this is actually what the founders thought. It may not work in today's social media, today's shameless world. They thought that someone who, like Trump, who had been impeached, someone certainly impeached twice would be so ashamed he would never run for office or he would be so held in disregard that the people would not only never vote for him, just never have anything to do with him.
John Yoo: Just to give you an example, Aaron Burr. Aaron Burr murdered Alexander Hamilton in a duel. He is seen as such a bad figure, he can never run for office again. What does he do? He leaves the United States and tries to start a revolt in Louisiana and is later tried for treason. That's an example. He was the vice president, and he could be impeached but he was so humiliated he left the worked. Maybe you're right Dany, it's just like in a world where politicians have no shame, the foun economics. To put a more practical point on it then, Trump's not done with the
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13 possibility, as you said, of prosecution. There could still be further investigation into the January 6th events and also Trump's efforts to stop the electoral count, to see if he committed any violations.
John Yoo: The investigations into him by the Manhattan DA are still going to go on. The investigation of his taxes by Congress is still going to go on, and he's going to be beset by legal problems for decades, probably until the day he dies. Maybe that's the best we can do.
Marc Thiessen: Final exit question from me, just because Dany hinted at it, but you believe that the president committed an impeachable offense and I think all three of us do. Liz Cheney says that not only was it an impeachable offense, but is probably the worst thing an American president has ever done.
John Yoo: That's a pretty bad president so I'm trying to think.
Marc Thiessen: Yeah.
John Yoo: Let's not let Andrew Johnson escape. Or actually James Madison for basically almost losing the War of 1812.
Marc Thiessen: Basically, what she's saying is that it was an effort to prevent Congress, by force, from carrying out its constitutional responsibility of counting and certifying the Electoral College votes. And that we need to keep in mind that it's only by the grace of God that this wasn't much worse. There were people running around chanting, "Hang Mike Pence." What if they had gotten to Pence before the Capitol police were able to get to him? What if they had gotten to the boxes containing the electoral votes? This could've been much, much worse. Tell us why you think what he did was impeachable, and you say that the House chose the wrong charge. What would the right charge be?
John Yoo: Yeah. The president's chief constitutional duties are to enforce the law and to protect the nation from attack. He was derelict in both. Dereliction is not a derelict of duty. The first thing is he refused to enforce the electoral laws themselves. He tried to stop the Electoral College and the electoral votes, rather than enforce the Constitution and the laws that created them. You could see a case maybe like 1876 actually, where some states sent in two sets of electoral votes where then you do have to choose between the two. But when you had all the states turning certified counts, no challenges succeeding in any of those states, there's factually no reason to doubt the electoral college vote. The president had no right to try to stop it. In fact, his legal duty was to accept it and enforce it. Then I think the second dereliction of duty was duty to protect the nation from attack, protect the Capitol from attack. Instead of egging on a mob, he should have called out the police faster and called out the National Guard faster.
John Yoo: Both of you have said impeachment covers not just crime, but politics. And he failed to uphold the Constitution and I think he committed political crime against the nation. I agree. It's just that I think the House did something strange and charged him with the wrong crime. It acted too fast at first and then too slow at
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14 the end. Didn't hand it over to the Senate for trial. The defects in the way they did, I think, are going to doom it.
Danielle Pletka: Well, they're either going to doom it or it was never going to happen in the first place, which is one of the things that the Senate vote on the Rand Paul bill seemed very clear. All in all, it reminds us how unbelievably depressing this episode has been, oh my God. Sometimes there isn't always a magical fix for it, and I suspect a lot of us wish there had been a clean fix for it, but either way how horrible and depressing. Thank you for going through the issues with us as usual. So succinct and easy to understand.
John Yoo: Actually, just one last thing. Can I say is that it actually shows, the Constitution doesn't answer all the questions. It's very American of all us as de Tocqueville
are pointing this out I think and it's up to you guys and up to AEI and all of us is there's a whole system of practices and traditions and good sense that lay on top of the Constitution that are going to be the real answers. It's not like the Constitution's going to convict Trump, it's going to be that people are going to shun him and hold him in bad regard. That's the real answer, I think.
Danielle Pletka: Long sigh. Thanks again John. You are awesome.
Marc Thiessen: Thank you John. That was great.
Marc Thiessen: All right, Dany, so we just listened to John. He, I think, very dispassionately laid out the arguments for and against even though he's against. He thinks it's not constitutional to proceed. You made your living constitution argument in favor. It's like, "Well we have to do something. There has to be a solution. My preferred outcome is it's constitutional. How do we get there?" So, Ruth Bader Ginsberg, what do you think?
Danielle Pletka: Yeah. Well that certainly helps me want to lay it out. I do think that we've reached an impasse that should concern all of us and I know that in this town, in the recognize that the shoe will be on the other foot. But the shoe will be on the other foot eventually. At some point one of these execrable people who are lurking around inside the Democratic Party, the AOC's, the Rashida Tlaib's, the Elizabeth Warren's. They will end up in a position of power and the Republicans will be looking for tools they can use to prosecute them, and it worries me that we do not have the tools to deal with unfitness for office because that's really what this is about. I think John sort of made this very persuasive case that the morays that the founders believed would animate our political figures are just inapplicable at this point. A person who can get a job based on pretending to be Native American is not a person who has shame.
Danielle Pletka: Obviously we poured our disdain, our disgust for Donald Trump out here. The problem is Donald Trump is just the tip of this iceberg. If we can't figure this out, if we can't figure out what it means to have a leader try to suborn our processes, all that means is it's going to get worse.
Marc Thiessen: I love and respect John and I'm not 100% sure where I stand, but I lean towards
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15
know that precedent is what governs the Senate, right? The precedent is that the Senate has voted that you can impeach somebody, notwithstanding their resignation, before they were impeached. This is in the case of Secretary of War William Belknap in 1876 where he resigned his office to preempt his impeachment, the House went ahead anyway and impeached him, and the Senate took up the vote. They acquitted him, but they specifically ruled that he could be impeached. That's even a more questionable situation than this because as John pointed out, President Trump was correctly impeached. He was still President of the United States when the House carried out its impeachment articles. So, you could make an argument that the plain reading of the Constitution is that if the president has been properly impeached then it's the Senate's job to carry out the impeachment trial.
Marc Thiessen: Maybe if this got brought to the Supreme Court they would rule differently. It would probably be good for our country if we had this whole process play out so we could learn what the constitutional remedies are and what's good and what isn't. I lean towards that it is constitutional, but it's not prudent. It's not the right things, and I don't like the idea of empowering Donald Trump with an acquittal which is what's going to happen.
Danielle Pletka: Yeah, but that is also looking at the outcome and worrying about it, I guess.
Marc Thiessen: That's a political question. These are political crimes.
Danielle Pletka: I'm not a lawyer but I'll say this again. During the Obama administration, the IRS went after conservative organizations and sought to either deny them their tax status or destroy them using tax regulations. Let's imagine to ourselves that they had been ordered to do that by Barack Obama, or that Barack Obama had merely implied to them that they should do that. Where does this end if we don't have a remedy for malfeasance and abuse of office in the White House? It's not a question for you, Marc, it's a question for everybody. At the end of the day unfortunately, we're in a lose-lose situation, right? The impeachment proceeding is going forward, he's almost certain to be acquitted, he gets all of the attention that he enjoys by lighting his own hair on fire, and who is the loser here? People will say, "Oh, it's the Republican Party that's the loser, har de har har. Don't you feel bad now?" I guess my answer to that is yeah, but aren't the American people the losers here? Don't you want competition in politics on a level playing field of decent people or moderately decent people?
Marc Thiessen: They are and on top of that the Democrats have gamed this politically on purpose, right? If it was so dangerous for Donald Trump to spend another 14 days, 13 days or whatever it was in office, they could've impeached him the day after the Capitol riots and sent it to the Senate and had the trial as John pointed out. They didn't do that.
Danielle Pletka: Why not?
Marc Thiessen: Because they wanted to jam up the Republicans. There were 10 Republicans that voted for impeachment. They didn't involve them in any way in the drafting of the
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16 articles, or write the articles in a way that would build bipartisan support and quite frankly, you know what? I'm surprised that Nancy Pelosi hasn't been smart enough to ask Liz Cheney to be an impeachment manager. If you really wanted to make this bipartisan and it was all about Donald Trump, then why wouldn't you ask Liz Cheney to make the case? I'd bet you she'd do it. They haven't asked her. Instead, they've got Eric Swalwell as an impeachment manager, which is his political rehabilitation. They're not serious about it.
Marc Thiessen: What they're doing is they're trying to jam up Republicans and make them stand up. Either vote against Donald Trump and get primaried, or vote to acquit him and then be complicit in his crimes. And, of course, the Republicans have a way around that which is the very legitimate constitutional argument that this is not a constitutional procedure and so the vast majority of Republicans will say, "I don't defend what happened in the Capitol." Many of them might even say, "I think Donald Trump bears some responsibility for that, but he's out of office and I'm voting to acquit not because I agree with what he did but because I think this proceeding is unconstitutional and so they don't get to jam them up that
Danielle Pletka: What a bloody nightmare. That is the right summary. What is going on with the Trump nightmare and how is it continuing into the Biden administration? That should be our title. Anyway.
Marc Thiessen: They just can't quit Donald Trump, the Democrats, right? They just can't quit him.
Danielle Pletka: Well, and republicans can't just quit their loyalty to Donald Trump because they can't figure out what his magic was. Bleh. The whole thing is bleh. Anyway folks, thanks for listening. Don't hesitate to reach out. Remember, complaints to Marc, compliments to me, and any technical questions to our friend Alexa.
Marc Thiessen: If you agree with Dany that I'm absolutely right all the time please let her know.
Danielle Pletka: Take care everyone.
Marc Thiessen: Bye.
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